FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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.

No. 14-55224

D.C. No.

2:93-cv-07044-

RSWL-GHK
2 SMITH V. LAUSD

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.

No. 14-55256

D.C. No. 

2:93-cv-07044-

RSWL-GHK

ORDER AND 

AMENDED OPINION
SMITH V. LAUSD 3

Appeal from the United States District Court

for the Central District of California

Ronald S.W. Lew, Senior District Judge, Presiding

Argued and Submitted February 12, 2016

Pasadena, California

Filed May 20, 2016

Amended July 27, 2016

Before: Jerome Farris, Richard R. Clifton,

and Carlos T. Bea, Circuit Judges.

Order;

Opinion by Judge Bea

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 

 * This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
4 SMITH V. LAUSD

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.

COUNSEL

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 DefendantAppellee 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 MovantsAppellants Mina Lee, et al.
SMITH V. LAUSD 5

Seymour I. Amster (argued), Law Offices of Seymour I. 

Amster; Angela Gilmartin, Law Offices of Angela 

Gilmartin, Woodland Hills, California; for MovantsAppellants April Munoz, et al.

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 
6 SMITH V. LAUSD

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.
SMITH V. LAUSD 7

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’ 

 1 One group of proposed intervenors is led by Mina Lee and Frances 

Moreno (the “Mina Lee Proposed Intervenors”), and the other by April 

Munoz, Julia Flores, and Cheryl Ayapana (the “April Munoz Proposed

Intervenors”) (collectively, “Appellants,” or “Proposed Intervenors” and 

each, individually, an “Appellant”).
8 SMITH V. LAUSD

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 
SMITH V. LAUSD 9

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 
10 SMITH V. LAUSD

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 

 2 Class Counsel are legal organizations with a self-professed 

ideological interest in advancing the rights of disabled children and their 

families.
SMITH V. LAUSD 11

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, 

 3 Under Plan 12, disabled children could comprise no more than 15 

percent of any school’s population. Because special education centers 

are comprised heavily or wholly of disabled students, Plan 12’s 15 

percent limitation would have effectively eliminated special education 

centers. The LAUSD objected to the plan by moving to modify and/or 

stay portions of the Consent Decree. The district court denied LAUSD’s 

motion, which had the practical effect of approving Plan 12.
12 SMITH V. LAUSD

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 

 4 Notably, Outcome 7 excluded students with Specific Learning 

Disabilities (“SLD”) and “Speech and Language” Impediments (“SLI”), 

the integration of whom was governed by Outcome 6 (which is not at 

issue in the present litigation). The SLD classification encompasses 

children with a “severe discrepancy between intellectual ability and 

achievement” in a particular area (such as “basic reading” or 

mathematics) due to “a disorder in one or more . . . basic psychological 

process[],” such as “attention” or “visual processing.” The SLI 

classification encompasses children with speech impediments or 

language fluency issues not due to unfamiliarity with English. See IEP 

Eligibility, L.A. UNIFIED SCH. DIST. (last visited Jan. 25, 2016), 

http://achieve.lausd.net/Page/3346.
SMITH V. LAUSD 13

enrollment in these centers accounted for a very small 

percentage of disabled student enrollment in LAUSD.5 

Based on Class Counsel’s abandonment of its plan to 

eliminate special education centers and the language in the 

MCD which specifically guaranteed their retention, the 

parent group agreed not to intervene.

LAUSD initially made significant progress towards 

Outcome 7. By September 2007, placement of disabled 

children included in Outcome 7 in general education classes 

for at least 40 percent of the school day had increased from 

29 percent to 47 percent—though it turned out that this 

reported progress was somewhat inflated.6 Declaration of 

 5 In 1998 (several years before the adoption of the Consent Decree) 

only 5,298 of the roughly 80,000 students in LAUSD who received

special education were enrolled in special education centers. By June 

24, 2012, enrollment in special education centers had fallen to 2,190—

though enrollment in Non-Public Schools increased over the same time 

period. Indeed, at least half the reduction in enrollment in special 

education centers from 1998 to 2012 was offset by increased enrollment 

in Non-Public Schools, enrollment in which increased 47 percent 

between 1998 and 2012 (from 3,101 to 4,552).

 6 A review of students’ actual class schedules revealed that 

administrators were “overestimat[ing]” the time disabled students were 

spending in general education classes in order to create the appearance 

that these targets were being met. See, e.g., Independent Monitor’s 

Annual Report for the 2008–2009 School Year. Indeed, the Independent 

Monitor’s September 29, 2010 report noted three years of “increasing[] 

overestimat[ion] [of] the number and percentage of students in the 

general education setting for 40% or more of the day.” (The Independent 

Monitor’s Annual Report for the 2009–2010 School Year explained: “As 

noted in previous reports, a primary contributing factor to these 

discrepancies is that schools appear to be entering a percent of time 

below 60% in special education without regard or consideration of the 

student’s [actual] class schedule.”). See also Independent Monitor’s 

Annual Report for the 2010–2011 School Year (stating the same).
14 SMITH V. LAUSD

Frederick J. Weintraub (“Weintraub”), the Independent 

Monitor, ¶ 7. But as the pool of disabled students included 

in Outcome 7 who spent most or all of their day outside 

general education classes and schools dwindled, it became 

increasingly difficult for LAUSD to identify students for 

whom greater integration was possible and beneficial.

Difficulties complying with Outcome 7 led to renewed 

negotiations in September 2008 between Class Counsel, the 

LAUSD, and the Independent Monitor, who ultimately 

adopted a two-part modification to Outcome 7 (termed 

“Outcome 7A” and “Outcome 7B,” or collectively, 

“Modified Outcome 7”). Weintraub Decl. ¶¶ 8, 9. Modified 

Outcome 7 reduced the integration targets imposed by 

original Outcome 7 by exempting from compliance disabled 

students aged 18 to 22 and significantly reducing the 

percentage of students with orthopedic disabilities who were 

required to attend general education classes.

LAUSD remained unable to meet Outcome 7, even as 

modified. The Independent Monitor ultimately concluded in 

its February 17, 2012 report that meeting Modified Outcome 

7 “would require the arbitrary transfer of a significant 

number of . . . students” from special education centers to 

general education campuses, an approach the Independent 

Monitor had never endorsed, see, e.g., Independent 

Monitor’s Annual Report for the 2010–2011 School Year 

(“As noted in past reports, . . . [efforts to integrate special 

education students as required by Outcome 7] should be in 

the best interest of the student and not solely motivated by 

progress on this [integration] outcome.”).

Commencing in October 2011, yet another round of 

negotiations between the parties and the Independent 

Monitor ensued. This led to an amendment to the MCD 

memorialized in a stipulation executed September 14, 2012 
SMITH V. LAUSD 15

(“Renegotiated Outcome 7”). Renegotiated Outcome 7 

provided that LAUSD would be deemed fully compliant 

with Modified Outcome 7 if it accomplished two new goals: 

(a) a flat 33 percent decrease in special education center 

enrollment by June 2015;7 and (b) integration of all 

“[s]tudents with moderate to severe disabilities at co-located 

schools” into “general education classes an average of 12% 

of the instructional day and during lunch, breaks/recess and 

school-wide activities.”8 As described in detail below, the 

implementation of Renegotiated Outcome 7 in the 2013–14 

school year brought substantial changes to the educational 

opportunities afforded children who attended (or sought to 

attend) special education centers in 2012. By 2014, over 8 

of LAUSD’s 18 special education centers had been closed to 

 7 This would represent a reduction of approximately 650 disabled 

students from schooling in special education centers, based on June 2012 

enrollment statistics.

 8 We remain unable to decipher the precise meaning of “co-located”—

an amorphous term used by LAUSD in 2012 and 2013 to describe its 

implementation of Renegotiated Outcome 7. At times, LAUSD used the 

word “co-located” in lieu of “closed” to refer to a special education 

center which has undergone the physical transfer of all its students and 

resources from the special education center to a general education school 

(e.g., with respect to the closure of Blend Special Education Center for 

the Blind). At other times, “co-located” was used to describe special 

education centers that shared a physical border with a general education 

campus (e.g., in the case of Banneker Special Education Center). By 

2014, LAUSD interpreted Renegotiated Outcome 7’s requirement that 

students at “co-located schools” spend an average of 12 percent of their 

day in general education classes as applying to disabled students at 13 of 

LAUSD’s 18 special education centers. Sometimes this meant the 

complete closure of a special education center; other times it meant the 

transfer of disabled students to a general education school for some part 

or all of the school day.
16 SMITH V. LAUSD

enrollment to disabled children under the age of 18. Parents 

of affected students were not invited to participate in the 

LAUSD/Class Counsel/Independent Monitor negotiations, 

which commenced in October 2011, supra p.14, nor were 

their viewpoints solicited in the negotiation, adoption, or 

implementation phases of Renegotiated Outcome 7.9

LAUSD did not start notifying parents of children 

affected by Renegotiated Outcome 7, or provide any 

information as to how it intended to accomplish 

Renegotiated Outcome 7’s dual mandates, until Spring 2013. 

As explained below, LAUSD’s notice varied significantly, 

but bore certain common themes.

Appellants whose children had attended Blend Special 

Education Center for the Blind (“Blend”) were generally told 

during individual parent IEP meetings in Spring 2013 that 

placement at Blend (or any other special education center) 

was no longer an option for their child; the Blend faculty and 

student body was being relocated in its entirety to a general 

education school.

About the same time, parents of children attending 

Banneker Special Education Center (“Banneker”) were told 

that their school would be “co-located” with Avalon Gardens 

Elementary (“Avalon Gardens”), a general education 

campus, starting in the 2013–14 school year. At the 

 9 In fact, the Independent Monitor’s reports treated parental resistance 

to increased placement of severely disabled students on general 

education campuses as an obstacle to be overcome. See, e.g., 

Independent Monitor’s Annual Report for the 2010–2011 School Year 

(instructing that “the District is encouraged to continue its work with 

families to explore existing and new classes on general education 

campuses. While families may resist, it is important they be exposed to 

options available outside of special education centers”).
SMITH V. LAUSD 17

commencement of the 2013 school year, parents learned that 

this meant that students enrolled in Banneker would be 

transported to Avalon Gardens for an average of 12 percent 

of their instructional day for “integration activities.” In 

February 2014 (after the motion to intervene at issue in this 

case was filed), Banneker parents learned that LAUSD 

would be closing Banneker altogether and relocating its 

student body to Avalon Gardens starting in the 2014–15 

school year. See Mina Lee Request for Judicial Notice (“Lee 

RJN”), Exh. A (Feb. 14, 2014 letter), Exh. E (March 21, 

2014 letter from LAUSD explaining that Banneker, which, 

among other things, had offered one of the district’s primary 

“mentally retarded severe” (“MRS”) programs for schoolaged special education children, was being transitioned into 

a Career Transition Center, a school that teaches vocational 

and basic living skills to young adults aged 18 to 22).10

 10 Both sets of Appellants have requested this court take judicial notice 

of various letters created and sent by the executive director of LAUSD 

to Appellants, as well as annual reports issued by the Independent 

Monitor. Both the letters and the reports summarize LAUSD’s progress 

in implementing Renegotiated Outcome 7, and both post-date 

Appellants’ motions to intervene, so it would have been impossible for 

Appellants to have included such letters and reports in support of their 

original motions. LAUSD does not dispute the authenticity or veracity 

of any of these documents. Cf. Fed. R. Evid. 201 (courts may take 

judicial notice of facts only if their veracity “cannot reasonably be 

questioned”). Moreover, courts routinely take judicial notice of letters 

published by the government (and here, the executive director of 

LAUSD was a government employee), see, e.g., Cactus Corner, LLC v. 

U.S. Dept. of Agriculture, 346 F.Supp.2d 1075 (E.D. Cal. 2004), as well 

as “records and reports of administrative bodies,” see Interstate Natural 

Gas Co. v. S. Cal. Gas. Co., 209 F.2d 380, 385 (9th Cir. 1953). We 

therefore find Appellants’ documents can be judicially noticed and grant 

Appellants’ motions for judicial notice.
18 SMITH V. LAUSD

Notice to parents of disabled children attending 

Lanterman Special Education Center (“Lanterman”) took 

the form of a field “trip slip” that was circulated to parents 

in the Fall of 2013—about a year after the adoption of 

Renegotiated Outcome 7. The “trip slip” purported to seek 

temporary authorization to transport Lanterman students to 

a general education school for an integration “test.” 

Appellants have offered evidence that LAUSD used the field 

trip slips to justify the permanent and daily transportation of 

Lanterman students to general education classes.

Affidavits submitted by parents of children who were 

previously enrolled full-time at Lull Special Education 

Center, Lokrantz Special Education Center, and McBride 

Special Education Center contain accounts similar to those 

described by Blend and Banneker parents.

Aside from the different types of individualized notice 

related above, Executive Director of Special Education in 

LAUSD, Sharyn Howell, circulated a letter on May 21, 2013

to the “LAUSD Community” (the “Howell Letter”), 

announcing that Modified Outcome 7 had been again 

renegotiated on September 14, 2012 and that, as a result, a 

“reduc[tion] [in] the number of students with moderate to 

severe disabilities ages 6–18 at segregated special education 

centers” would occur. The Howell Letter indicated that four 

special education centers (Banneker, Blend, McBride, and 

Miller) would be affected in the 2013–14 school year. The

letter further explained that all pre-school-aged special 

education students would be sent to general education 

schools, rather than to special education centers. See Aguilar 

Decl. ¶ 7 (noting declining enrollment in several special 

education centers as a result of the district’s new policy 

against permitting new student enrollment); see also Berrios 

Decl. ¶¶ 6–7 (stating the same).
SMITH V. LAUSD 19

As the Howell Letter indicated, 2013 was a year of great 

changes. Even those Proposed Intervenors who received 

notice through IEP meetings in Spring 2013 that their 

children would receive “integration opportunities” in the 

coming school year were left uncertain as to the actual 

effects on them of Renegotiated Outcome 7. See, e.g., J. 

Flores Decl. ¶ 9. Many parents, particularly those for whom 

English is a second language, were incorrectly led to believe 

that the services and curriculum offered their children would 

remain the same despite the transfer to a new school. See, 

e.g., J. Flores Decl. ¶ 12; A. Flores Decl. ¶ 4; Lee Decl. ¶ 6; 

Chamu Decl. ¶¶ 4–5. Many parents claim simply not to have 

appreciated the effects of the changes until their children 

began coming home after school with bruises and other 

injuries in late August and September of 2013—injuries 

Appellants’ children suffered while in general education 

schools. See, e.g., J. Flores Decl. ¶ 11; A. Flores Decl. ¶ 6; 

Hernandez Decl. ¶¶ 3–4; Chamu Decl. ¶ 6; Hernandez Decl., 

Exh. E (photographs of injuries); J. Flores Decl., Exh. C 

(photographs of injuries). Parents also discovered in Fall 

2013 that the general education campuses to which their 

children (and over 500 other moderately to severely disabled 

children) were being transferred had not been adapted, 

through tangible construction alterations, to provide a safe 

and effective learning environment, as memorialized in the 

Independent Monitor’s October 2014 Report. See Munoz 

RJN, Exh. 1, p. 4.11

 11 Much of the necessary alteration was not scheduled to start until the 

summer of 2015. The Independent Monitor’s report following the 2013–

14 school year also noted a number of “questionable” planning decisions 

that seemed unlikely to safeguard the health and safety of disabled 

students even after renovations were completed. Id. For example, areas 

designated for “[diaper] changing, feeding and health care protocols” 
20 SMITH V. LAUSD

These discoveries came shortly after small group 

meetings between Stephen Maseda (who became counsel to 

the Mina Lee Proposed Intervenors), April Munoz (an 

Appellant), unspecified LAUSD board members, Howell, 

the Independent Monitor, and Class Counsel on August 2 

and 5, 2013, respectively. Maseda Decl. ¶¶ 10–13; Munoz 

Decl. Munoz and Maseda concluded that neither LAUSD

nor Class Counsel represented their interests or believed that 

special education centers should be a part of the continuum 

of special education opportunities available to disabled 

children in LAUSD.

On October 15, 2013, and October 23, 2013, seventy-one 

and seventy-nine days after concluding their interests were 

not being represented by LAUSD or Class Counsel, 

respectively, two groups of parents (the April Munoz 

Proposed Intervenors and the Mina Lee Proposed 

Intervenors) moved to intervene “individually and on behalf 

of all other persons similarly situated” as a matter of right, 

see Fed. R. Civ. Proc. 24(a), or, in the alternative, under Rule 

24(b) (permissive intervention). Appellants’ cases were 

consolidated, and the district court denied both motions on 

January 16, 2014. The court rejected Appellants’ Rule 24(a) 

motion to intervene as a matter of right as untimely or, 

 “were located inside classrooms that lacked running water and 

drainage”; special education classrooms were placed “over 350 feet” 

from bathrooms scheduled to be renovated to accommodate disabled 

children; the placement of bus drop-offs and lunch areas required blind 

children “to navigate slopes, uneven steps, tripping hazards and 

protruding objects” to get to class; visually impaired children were also 

placed in “an isolated part of the campus with inaccessible bathrooms.” 

Id. Exh. 1, p. 4; Exh. 2, p. 3.
SMITH V. LAUSD 21

alternatively, as unnecessary to protect Appellants’ 

interests.12

II. LEGAL ANALYSIS

A. Standard of Review

Appellants appeal the denial of their motion to intervene 

as a matter of right pursuant to Rule 24(a)(2). An applicant 

for intervention under Rule 24(a)(2) must establish four 

elements: (1) that the prospective intervenor’s motion is 

“timely”; (2) that the would-be intervenor has “a 

‘significantly protectable’ interest relating to . . . the subject 

of the action,” (3) that the intervenor is “so situated that the 

disposition of the action may as a practical matter impair or 

impede [the intervenor’s] ability to protect that interest”; and 

(4) that such interest is “inadequately represented by the 

parties to the action.” Freedom from Religion Found., Inc. 

v. Geithner, 644 F.3d 836, 841 (9th Cir. 2011) [hereinafter 

“FFRF”]. Though the applicant bears the burden of 

establishing these elements, we have repeatedly instructed 

that “the requirements for intervention are [to be] broadly 

interpreted in favor of intervention.” United States v. Alisal 

Water Corp., 370 F.3d 915, 919 (9th Cir. 2004); see also 

Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1179 

(9th Cir. 2011) (en banc) (noting that “[a] liberal policy in 

favor of intervention serves both efficient resolution of 

issues and broadened access to the courts” (quoting United 

 12 The court also rejected Appellant Rule 24(b) motion for permissive 

intervention as untimely. In the alternative, it “exercise[d] its discretion 

to deny” permission intervention on the grounds that it would prejudice 

existing parties and “open the floodgates to additional proposed 

intervenors.”
22 SMITH V. LAUSD

States v. City of Los Angeles, 288 F.3d 391, 397–98 (9th Cir. 

2002) (alteration in original)).

A lower court’s denial of a motion to intervene is 

reviewed de novo, except that its timeliness determination is 

reviewed for abuse of discretion. Alisal, 370 F.3d at 918–

19. A court abuses its discretion if it fails to apply the correct 

legal rule or standard. United States v. Hinkson, 585 F.3d 

1247, 1262 (9th Cir. 2009) (en banc). And even “[i]f the trial 

court identified the correct legal rule,” we may find an abuse 

of discretion if the court’s application of that rule was 

“(1) illogical, (2) implausible, or (3) without support in 

inferences that may be drawn from the facts in the record.” 

Id. (internal quotation marks omitted). 

B. Timeliness

Timeliness is determined by the totality of the 

circumstances facing would-be intervenors, with a focus on 

three primary factors: “(1) the stage of the proceeding at 

which an applicant seeks to intervene; (2) the prejudice to 

other parties; and (3) the reason for and length of the delay.” 

Alisal Water, 370 F.3d at 921. In analyzing these factors, 

however, courts should bear in mind that “[t]he crucial date 

for assessing the timeliness of a motion to intervene is when 

proposed intervenors should have been aware that their 

interests would not be adequately protected by the existing 

parties.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 

1999). As explained below, the district court’s analysis did 

not follow this basic principle. We accordingly hold that the 

court abused its discretion in finding Appellants’ motions 

untimely under the totality of the circumstances of this case.
SMITH V. LAUSD 23

1. Stage of the Proceedings

It is true that Appellants seek to intervene in this action 

approximately twenty years after its commencement, and 

seventeen years after the adoption of the first Consent 

Decree. However, in analyzing the “stage of the 

proceedings” factor, the “[m]ere lapse of time alone is not 

determinative.” United States v. State of Oregon, 745 F.2d 

550, 552 (9th Cir. 1984). Where a change of circumstances 

occurs, and that change is the “major reason” for the motion 

to intervene, the stage of proceedings factor should be 

analyzed by reference to the change in circumstances, and 

not the commencement of the litigation. See id.

We previously applied this rule in State of Oregon, 

where the State of Idaho moved to intervene in litigation 

between the States of Washington and Oregon and various 

Indian Tribes, fifteen years after the commencement of that 

action in 1968, and five years after a settlement had been 

reached in 1977. Id. at 551–52. Notwithstanding the 

substantial lapse in time, we held that the “stage of 

proceedings” factor supported a finding of timeliness 

because a “change of circumstance” had occurred in 1982—

two Indian tribes had given “notice of their intent to 

withdraw from the [settlement] or to renegotiate it” which 

created “the possibility of new and expanded negotiations.” 

Id. at 552. We concluded that this change in circumstances 

weighed in favor of a finding that the State of Idaho’s August 

1983 motion to intervene was timely. Id. at 552–53 (holding 

that the district court abused its discretion in denying the 

motion to intervene as untimely).

Here, the district court’s conclusory determination that 

Renegotiated Outcome 7 did not constitute a change in 

circumstances because it “appears to be just another 
24 SMITH V. LAUSD

modification to the MCD aimed at further integration,” was 

contrary to any plausible interpretation of the record. 

Perhaps viewed as a progression towards “integration,” 

Renegotiated Outcome 7 represented only “another step” in 

LAUSD’s march toward the goal of greater integration of 

disabled children in LAUSD’s schools; attempts—some 

successful, some not—toward integration had been 

occurring since the adoption of the original Consent Decree. 

But the record demonstrates that Renegotiated Outcome 7 

caused a substantial change in the educational opportunities 

afforded the group of disabled students of the LAUSD who 

attended special education centers prior to 2013—namely, 

the group now seeking to intervene.

From 1993 to 2012, LAUSD operated approximately 18 

special education centers throughout the school district, and 

it offered full-time placement at those schools for children 

whose IEPs so recommended. During that time, the 

placement of these students (including, at times, the transfer 

of a student from a special education center to a general 

education school) was conducted through case-by-case 

assessments of individual students, by IEP teams and with

parental involvement and consent; indeed, parents retained

some influence over, and input into, their child’s placement, 

including the opportunity to object during the IEP process to 

their child’s removal from a special education center.13 See, 

 13 For example, the Independent Monitor’s 2010-11 Report indicated 

that, of the “95 children identified as potential students to transition” 

from special education centers to general education campuses, only 27 

were actually transferred. The Independent Monitor attributed the low 

transfer rate to parental resistance to the removal of their children from 

special education centers.
SMITH V. LAUSD 25

e.g., Efron Decl. ¶¶ 34–36; Gliona Decl. ¶¶ 6, 8, 10; 

Ayapana Decl. ¶¶ 4–5.

Since Renegotiated Outcome 7, however, severely 

disabled children have been transferred en masse to general 

education campuses, over parental objections. At least 8 of 

the 18 special education centers have been closed to 

enrollment by Appellants and similarly situated disabled 

students.14 Appellants have offered evidence that parents 

are not consulted in the development of their child’s IEP. 

Rather, they are told that placement in a special education 

center is no longer an option. If they disagree with a 

predetermined placement, their only recourse is to file an 

administrative appeal. See, e.g., Maseda Decl. ¶ 7; Lee Decl. 

¶ 4; J. Flores Decl. ¶ 13; A. Flores Decl. ¶ 4; Gliona Decl. 

 14 As discussed above, Blend Special Education Center for the Blind 

was the first special education center to close. LAUSD disputes that the 

transfer of all students, teachers, assistants, and curriculum materials 

from a special education center to a general education campus constitutes 

the “closure” of a special education center. We reject this slight on the 

meaning of words. For all practical purposes, the complete transfer of 

students, teaching staff, and resources from a school is a closure of that

school, at least as to those students and that teaching staff. Moreover, 

letters prepared by LAUSD demonstrate that at least seven more special 

education centers have followed suit: A letter dated March 3, 2014 from 

LAUSD to parents of students at Lull Special Education Center 

explained that the school’s “teachers, assistants and classroom materials” 

would be “relocated to Northridge Middle School,” a general education 

school. Lee RJN, Exh. B. A letter dated March 21, 2014 (again, from 

the school district) announced that at the commencement of the 2014–15 

school year six more of LAUSD’s remaining special education centers 

(Banneker, Salvin, Willenberg, Marlton, Leichman, and Perez) would be 

converted into “Career Transition Centers.” Lee RJN, Exh. E (also 

explaining that “[t]his transition means that our 7–11 graders will be 

relocated to other campuses”). As noted, Career Transition Centers are 

schools that teach children ages 18 to 22 basic job and independent living 

skills.
26 SMITH V. LAUSD

¶¶ 8–9, 11, 15–17; Goldberg Decl. ¶ 4. Starting in 2013, 

LAUSD began conducting individual student and parent IEP 

meetings with an attorney present. See Gliona Decl. ¶ 8; 

Gliona Decl. ¶ 7. Whereas the 2003 MCD had stated that 

special education centers were an important part of the 

“continuum” of educational opportunities available to 

disabled children, LAUSD Executive Director of Special 

Education, Sharyn Howell, has now taken the position that 

special education centers are unnecessary because the 

district can “provide all supports and services . . . at a general 

education site.” Howell Decl. ¶ 4.

Additionally, the record indicates that most, if not all, 

students formerly enrolled full-time in special education 

centers (regardless of whether their schools have been 

closed) are now required to spend an average of 12 percent 

of their instructional day in general education classes—most 

frequently physical education, music, theater, and art 

classes. This curriculum change has been imposed on 

students whose individual IEPs previously recommended 

full-time placement in a special education center.15

In short, if the “possibility” of negotiations constituted a 

change of circumstances in State of Oregon, then LAUSD’s 

 15 For example, J.R.C. is blind, cannot communicate verbally, and is 

severely developmentally delayed; yet starting in the 2013–14 school 

year, he was required to attend “integrated” physical education classes 

over his parents’ objection that such integration is not safe. Chamu Decl. 

¶ 9; see also Gliona Decl. ¶ 5 (offering a comparison of J.R.C.’s IEP with 

the State of California’s standards for the general education classes in 

which J.R.C. is now enrolled, and asserting that general education 

classes are incompatible with any reasonable reading of J.R.C.’s IEP). 

To give another example, S.L., who is blind and deaf, is required to 

attend general education music and physical education classes pursuant 

to Renegotiated Outcome 7. Lee Decl. ¶ 5; see also Fazzi Decl. ¶ 7.
SMITH V. LAUSD 27

adoption of a flat quota requiring the reduction of special 

education center enrollment by 33 percent, since it has led to 

an overhaul of LAUSD’s approach to educating its 

moderately to severely disabled students enrolled in special 

education centers in LAUSD, is all the more so a “change in 

circumstances,” at least as to Appellants.

As in State of Oregon, the adoption of Renegotiated 

Outcome 7 in 2012 marked the commencement of a “new 

stage” in the Chanda Smith Litigation. For purposes of the 

“stage of proceedings” analysis, it is critical that Appellants 

have moved to intervene to challenge only Renegotiated 

Outcome 7 and the manner by which it has been 

implemented—in other words, the most current stage of the 

Chanda Smith Litigation. Appellants are not seeking to 

reopen decades of litigation. Thus, it was error to measure 

the timeliness of Appellants’ motions by reference to stages 

of litigation pre-dating the change in circumstances that 

motivated Appellants’ motion to intervene. See, e.g., 

Natural Resources Defense Council v. Costle, 561 F.2d 904,

907 (D.C. Cir. 1977) (cited with approval in State of Oregon, 

745 F.2d at 552) (“[T]he amount of time which has elapsed 

since the litigation began is not in itself the determinative 

test of timeliness. Rather, the court should also look to the 

related circumstances, including the purpose for which 

intervention is sought . . . .” (first alteration in original)).16 

 16 In Costle, the Natural Resources Defense Council sued the 

Environmental Protection Agency (“EPA”) and successfully negotiated 

a settlement whereby the EPA was required to establish regulations 

governing water pollution. Id. at 906. Rubber and chemical companies 

sought to intervene at the time of settlement to participate in the oversight 

and implementation of the settlement agreement. Id. at 907. The 

appellate court held that the district court had abused its discretion in 

denying the companies’ Rule 24(a)(2) motion to intervene, because the 
28 SMITH V. LAUSD

In failing to analyze timeliness in light of the change in 

circumstances detailed above, the district court abused its 

discretion by failing to apply the correct legal rule. See

Hinkson, 585 F.3d at 1262.

Our holding that Renegotiated Outcome 7 constituted a 

“change in circumstances” is confined to the specific facts 

of this case. The systematic change in circumstances that 

occurred here, coupled with the fact that (as discussed 

further below), Appellants moved to intervene as soon as 

reasonably practicable following such change, serves to 

distinguish the present case from the sole authority cited by 

the district court, Delaware Valley Citizens’ Council for 

Clean Air v. Commonwealth of Pennsylvania, 674 F.2d 970, 

974–75 (3d Cir. 1982).17

 purpose of the intervenors’ motion related to the current stage of the 

proceedings and was therefore timely, notwithstanding appellants’ threeyear delay in moving to intervene since the commencement of the 

litigation. Id. at 906–08.

 17 In Delaware Valley, a group of Pennsylvania state legislators sought 

to intervene in a high-profile lawsuit against the State of Pennsylvania 

and various state entities to compel the passage of legislation related to 

automobile emissions pursuant to the Clean Air Act. Id. at 971–72. They 

did so almost two years after the execution of a consent decree requiring 

the passage of emissions legislation. Id. Though the Third Circuit did 

not give precise dates, it reasoned that the legislators were or should have 

been on notice of the suit, and the consent decree, well before they 

moved to intervene. Id. at 974–75 (explaining that one prospective 

intervenor had even proposed legislation pursuant to the consent decree). 

The court found the sole justification offered for the legislators’ delay—

that they were “busy”—insufficient. Id. at 975. The court further 

rejected the legislators’ argument that their motion was timely simply 

because it was filed 45 days after the first modification to the consent 

decree. Id. at 974. The court reasoned that the modification did not make 

the motion timely because “none of the circumstances or facts upon 
SMITH V. LAUSD 29

In sum, the stage of proceedings factor weighs in 

Appellants’ favor. 

2. Prejudice to Other Parties

We have previously held that prejudice to existing 

parties is “the most important consideration in deciding 

whether a motion for intervention is untimely.” State of 

Oregon, 745 F.2d at 552. We have also recognized that 

courts may find prejudice on the basis of non-monetary 

factors: For example, if granting a belated motion to 

intervene would threaten the delicate balance reached by 

existing parties after protracted negotiations, this factor may 

weigh against intervention. See, e.g., Cty. of Orange v. Air 

Cal., 799 F.2d 535, 538 (9th Cir. 1986). However, we 

emphasized in State of Oregon that the only “prejudice” that 

is relevant under this factor is that which flows from a 

prospective intervenor’s failure to intervene after he knew, 

or reasonably should have known, that his interests were not 

being adequately represented—and not from the fact that 

including another party in the case might make resolution 

more “difficult[].” 745 F.2d at 552–53; see also Stallworth 

v. Monsanto Co., 558 F.2d 257, 267 (5th Cir. 1977) (“With 

respect to the second factor, the district court again applied 

an incorrect legal standard. For the purpose of determining 

whether an application for intervention is timely, the 

relevant issue is not how much prejudice would result from 

 which appellants base their claim for relief have changed since the 

[unmodified] consent decree was entered.” Id. at 975. Moreover, the 

proposed intervenors were not seeking to intervene to challenge the 

modification, but rather sought to “scrap[]” the original consent decree 

itself. Id. Under the totality of these circumstances, the Third Circuit 

concluded, the district court had not abused its discretion in denying the 

legislators’ motion to intervene as untimely. Id.
30 SMITH V. LAUSD

allowing intervention, but rather how much prejudice would 

result from the would-be intervenor’s failure to request 

intervention as soon as he knew or should have known of his 

interest in the case.”).

In State of Oregon, various Indian tribes and the States 

of Washington and Oregon argued that permitting the State 

of Idaho to intervene in litigation fifteen years after the 

commencement of the litigation regarding the regulation of 

fishing would jeopardize the existing parties’ negotiations. 

745 F.2d at 552–53. We rejected this argument. We found 

no prejudice because “the existing parties’ concerns have 

little to do with timeliness. They do not suggest that their 

problems are materially different now than they would have 

been had Idaho sought to intervene a decade or more ago.” 

Id. at 553. We therefore reversed the lower court’s denial of 

the State of Idaho’s motion to intervene. Id.

As in State of Oregon, the district court’s finding of 

prejudice here was untethered to any prejudice which was 

caused by Appellants’ delay. The district court reasoned that 

permitting intervention “would prolong the litigation,” 

because it would “upset the delicate balance the Parties and 

the Independent Monitor have sought and achieved through 

careful negotiation and research” in devising Renegotiated 

Outcome 7 (chronicling the lengthy negotiations of 

Renegotiated Outcome 7 between Class Counsel, the 

Independent Monitor, and Dr. David Rostetter, a special 

education expert, which culminated in Renegotiated 

Outcome 7). But this is merely an argument that permitting 

the parties who concluded they were detrimentally affected

in 2013 by Renegotiated Outcome 7 to participate in its 

negotiation and implementation would make achieving 

resolution more difficult, given the parties’ competing 

interests. Because this would be true regardless of when the 
SMITH V. LAUSD 31

intervention occurred, it is unrelated to timeliness, and 

cannot support a finding of prejudice under State of Oregon.

The district court also cited LAUSD’s expenditure of 

resources in transferring special education students, 

programs, and resources to general education schools and 

campuses. That would be relevant had Appellants failed to 

act in the face of reasonable notice from LAUSD of its plans 

to close special education centers en masse and had LAUSD 

invested significant resources in reliance on that delay. Cf. 

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“The 

crucial date for assessing the timeliness of a motion to 

intervene is when proposed intervenors should have been 

aware that their interests would not be adequately protected 

by the existing parties.”).

But that is not what happened here. LAUSD parents 

were excluded from the negotiations that led to the adoption 

of Renegotiated Outcome 7 in September 2012. And in the 

year between the adoption of Renegotiated Outcome 7 and 

its initial implementation in August 2013, Appellants were 

consistently uninformed or misinformed as to the existence 

and true effects of Renegotiated Outcome 7.18 The Fifth 

Circuit has recognized, and we agree, that existing parties 

cannot complain about delay or prejudice caused by their 

 18 Some parents were told that the district was merely changing the 

name of their child’s school. Others were more accurately told that their 

child would be transferred to a general education school or campus, but 

assured that their child’s curriculum would remain the same in all 

respects. Of course, neither of these statements were accurate given the 

new requirement that special education center students be “integrated” 

in general education classes for lunch, recess, and 12 percent of the 

instructional day. Nor did these statements reasonably put Appellants on 

notice that LAUSD would be outright closing eight special education 

centers by the end of 2014.
32 SMITH V. LAUSD

own efforts to thwart the provision of meaningful notice to 

affected parties. See Stallworth, 558 F.2d at 267 (holding 

that a district court abused its discretion in finding a motion 

to intervene untimely where an existing party had previously 

prevented notice to affected parties).

That principle has particular application here, where the 

consequences of Renegotiated Outcome 7 were uniquely 

within LAUSD’s knowledge and control, given that LAUSD 

was its implementing party. Instead of clearly apprising 

affected parents as to how LASUD intended to implement 

the changes precipitated by Renegotiated Outcome 7, 

LAUSD issued incomplete information throughout 2013. 

As a result, the full extent of Renegotiated Outcome 7 was 

not revealed until 2014 and 2015—well after Appellants’ 

filing in Fall 2013 of the supposedly untimely motion to 

intervene at issue in this appeal.19

 19 To illustrate, the first district-wide notice of Renegotiated Outcome 

7, the Howell Letter circulated on May 21, 2013, indicated that the 

district would be developing “integration plans” to “co-locate[]” four 

special education centers (Banneker, Blend, McBride, and Miller) with 

four “general education pioneer counterparts (Avalon Gardens, Van 

Ness, Grand View, and Cleveland SH, respectively).” It described in 

glowing terms the district’s plans to offer integration “opportunit[ies]” 

through “arts,” “physical education,” and “social activities . . . to 

increase the integration of . . . students with disabilities.” Critically, it 

promised that LAUSD would be “working with school site staff and 

families to analyze the Individualized Education Programs (IEPs) of 

students with disabilities to determine how to most effectively increase 

the integration of students based on their individual needs.” (emphasis 

added). Nowhere does the May 2013 letter indicate that, just one year 

later, LAUSD would be closing approximately half of its special 

education centers, without any prior “working with . . . families.”
SMITH V. LAUSD 33

When our inquiry is properly narrowed to the prejudice 

attributable to Appellants’ delay in moving to intervene after 

the time Appellants knew, or reasonably should have known, 

that their interests were not being adequately represented by 

existing parties, the prejudice to existing parties becomes 

nominal at best. Indeed, neither the district court nor 

LAUSD has pointed to any evidence whatsoever of 

additional costs or other prejudice suffered between August 

2013 and October 2013. The district court accordingly 

abused its discretion in concluding that this factor weighed 

against intervention.

3. Reason for and Length of the Intervenor’s Delay

For the reasons already explained above, the district 

court erred to the extent it measured the length of 

Appellants’ delay by reference to events pre-dating the time 

at which Proposed Intervenors were reasonably on notice 

 The rhetoric used in the May 2013 letter can be sharply contrasted 

with the notice provided to parents in 2014—notably, after the motion to 

intervene at issue in this appeal was filed. Letters sent to parents of 

students at various special education centers in February of 2014, for 

example, state that all the “teachers, assistants and classroom materials 

are expected to re-locate” from various special education centers to 

general education campuses. See Lee RJN Exh. A (Letter to Banneker 

parents); see also id. Exh. B (Letter to parents of students attending Lull 

Special Education Center); Exh. C (Letter to parents of students 

attending Perez Special Education Center); Exh. E (Letter to parents of 

Banneker and Doyle special education centers, explaining that “[t]he 

district . . . has decided to continue transitioning the Special Education 

Schools to Career Transition Centers. For the 2014–2015 school year, 

the Special Education Schools becoming Career Transition Centers are: 

Banneker, Salvin, Willenberg, Marlton, Leichman, and Perez . . . . This 

transition means that our 7–11 graders will be relocated to other 

campuses.”). Whatever “co-location” was supposed to mean, see supra, 

n.8 that term had served its purpose; by 2014, it disappeared.
34 SMITH V. LAUSD

that their interests were not being adequately represented, 

see Smith, 194 F.3d at 1052—and certainly to the extent the 

court relied on events predating the change in circumstances 

that prompted Appellants’ current motion to intervene. In 

State of Oregon, for example, the “changed circumstances” 

giving rise to the motion to intervene occurred “in 1982 

when two of the Tribes gave notice of their intent to 

withdraw from the Plan or to renegotiate it.” State of 

Oregon, 745 F.2d at 552. Yet the proposed intervenors did 

not file until late August 1983. Id. Despite at least an eightmonth delay (the opinion is not clear as to when in 1982 the 

tribes gave the notice referenced above nor when the State 

of Idaho received that notice), we held that the “reason for 

and length of delay” factor weighed in favor of intervention. 

Id. Similarly here, Appellants moved to intervene 

approximately one year after the change in circumstances 

prompting their motion but, as discussed below, only weeks 

after definitively learning that their interests were not 

adequately represented by the existing parties.

Here, not only was the district court’s analysis contrary 

to law, it was contrary to the record before the court. For 

example, the district court concluded that Appellants 

“arguably have been on notice from the very beginning of 

this litigation.” But how can that be true when many of the 

Proposed Intervenors’ children had not even been born at the 

inception of the litigation, let alone been born disabled?

The district court alternatively suggested that Proposed 

Intervenors have been on notice of this action since 2002, 

when a group of parents served Class Counsel with an earlier 

motion to intervene. The court’s conclusions are logically 

fallacious because most of the Proposed Intervenors did not 

even have children enrolled in LAUSD in 2002—much less 
SMITH V. LAUSD 35

in 1993 when this litigation commenced.20 Appellants could 

not possibly have been on notice that their interests were not 

adequately represented prior to having any interest in this 

litigation at all. The district court’s analysis therefore 

incorrectly conflated the knowledge of an entirely different 

group of parents with Appellants’ knowledge.

Nor should the fact that “the inclusion of special 

education students into the general education program has 

been a primary issue from the beginning of this case” have 

placed Appellants on notice that intervention was necessary 

to protect their interests prior to 2013. Both the 1996 

Consent Decree and the 2003 MCD specifically required 

LAUSD to maintain special education centers throughout 

the district as placement options for moderately to severely 

disabled children. Consistent with this mandate, LAUSD 

continued to operate approximately the same number of 

special education centers throughout the district from 1993 

to 2013. That LAUSD continued to offer placement in 

special education centers despite decades of discussions 

about greater integration of disabled children in the general 

education environment only contradicts the lower court’s 

conclusion that the same discussions should have placed 

Appellants on notice that LAUSD planned to start closing 

special education centers en masse in 2013 and 2014. 

 20 Appellant Lee’s and Ayapana’s children were 14 years old in 

October 2013, making them only 4 in 2003. Appellant Moreno’s 

daughter and Appellant J. Flores’ son were 10 years old in October 2013, 

meaning they were newborns in 2003. The only potential exception is 

Linda Buschini (a member of the April Munoz Proposed Intervenors), 

who was a member of the parent group who sought to intervene in 2002. 

Even so, Buschini’s involvement in 2002 could not reasonably have 

placed her on notice of the change in circumstances that occurred in 

2012, given that the 2003 MCD specifically guaranteed the retention of 

special education centers.
36 SMITH V. LAUSD

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.21

 21 Specifically, the district court cited a statement in the Independent 

Monitor’s October 5, 2011 Annual Report that meeting one aspect of 

Modified Outcome 7 “would require the arbitrary transfer of a significant 

number of [multiple disabilities orthopedic] students. The Parties are 

currently engaged in discussions to find a solution to this problem.” But 

in context, this statement undercuts the district court’s conclusion. The 

Independent Monitor certainly was not advocating the “arbitrary” 

transfer of students; indeed, that would be contrary to the IDEA’s IEP 

requirement. Thus, the Independent Monitor’s statement could not 

reasonably be construed as notice that LAUSD intended to start 

“arbitrarily” transferring special education students to general education 

schools and campuses. Moreover, the Independent Monitor’s 

acknowledgement that LAUSD had again failed to meet Outcome 7 was 

nothing new. LAUSD had never met any version of Outcome 7; this 

prolonged failure is what led to numerous renegotiations of that 

Outcome.
SMITH V. LAUSD 37

In short, only the district court’s finding that Appellants 

variously received some form of notice in April, May, or 

June of 2013 is reasonably supported by the record. Even 

so, as discussed above, Appellants had not been privy to the 

negotiations that led to Renegotiated Outcome 7, and the 

initial information promulgated by LAUSD as to the 

practical effects of Renegotiated Outcome 7 was incomplete. 

Appellants therefore convincingly urge that they did not 

realize until the August 5, 2013 meeting with Class Counsel 

that their interests were not being adequately represented by 

the existing parties to the Chanda Smith Litigation. The 

district court even conceded that this “could constitute a 

proper explanation for [Appellants’] delay—at least until 

August 5, 2013.” We have no reason to disturb the court’s 

finding in this regard.

However, the district court then proceeded to find no 

valid excuse for Appellants’ additional delays of 71 and 79 

days, respectively, between the August 5, 2013 meeting and 

the October 15 and 23, 2013 filing dates of the motions to 

intervene. We again reject the district court’s analysis as 

contrary to law and an abuse of discretion in light of the 

record in this case. Where—as here—both the first and 

second timeliness factors weigh in favor of intervention, we 

have found motions to be timely even in the face of longer

delays than are present here.22 See, e.g., State of Oregon, 

745 F.2d at 552.

 22 The off-point and non-binding authorities cited by the district court 

do not counsel otherwise; those cases merely found unexcused delays of 

four and five months, respectively, to weigh against a finding of 

timeliness. See Key Bank of Puget Sound v. Alaskan Harvester, 738 F. 

Supp. 398, 405 (W.D. Wash. 1989); Consolidated Edison Co. of N.Y. v. 

Breznay, 683 F. Supp. 832, 836 (D.D.C. 1987).
38 SMITH V. LAUSD

More importantly, the totality of the circumstances here 

demonstrates that Appellants’ delay in filing between 

August and October of 2013 was justified. It bears noting, 

first of all, that only one Appellant (Munoz) appears to have 

been present at the August 2013 meetings. And in any event, 

the record is replete with evidence that—perhaps in no small 

part due to the rosy language in which the changes were 

portrayed by LAUSD—Appellants reasonably did not 

appreciate the full import of Renegotiated Outcome 7, 

including the changes to their children’s curricula and 

learning environments, until classes actually began in 

August of 2013, see, e.g., Moreno Decl. ¶ 3; J. Flores Decl.

¶¶ 9, 11; Buschini Decl. ¶ 8; Aguilar Decl. ¶ 4; Pineda Decl. 

(explaining that Pineda did not realize the safety risk the new 

learning environment posed to Pineda’s autistic son, V.P., 

until V.P. was found “walking alone a mile from the school” 

due to understaffing in V.P.’s classroom and the lack of 

special safety features at V.P.’s new general education 

campus), or until their children began coming home from 

school with injuries, see, e.g., J. Flores Decl. ¶ 11, Exh. C 

(photographs of injuries); A. Flores Decl. ¶ 6; Hernandez 

Decl. ¶¶ 3–4, Exh. E (photographs of injuries); Chamu Decl. 

¶ 6. Many parents initially attempted informal resolution of 

their disagreement with LAUSD as to their child’s 

placement. See, e.g., Chamu Decl. ¶¶ 6, 10; J. Flores Decl. 

¶ 10; Buschini Decl. ¶ 13. Several parents attended a 

meeting on September 9, 2013, at which they inquired about 

the new placement of their children. Even after it became 

clear that intervention was necessary to protect Appellants’ 

interests, it simply took time to organize and gather evidence 

to support Appellants’ motions to intervene. Appellants are 

not a sophisticated or unified body, but rather a consortium 

of parents of special education students. See Stallworth, 

558 F.2d at 264 (explaining that the “size and sophistication 

of the would-be intervenor”—in that case, the NAACP—
SMITH V. LAUSD 39

was a relevant factor in determining timeliness). At least one 

Appellant required translation services to prepare the 

declaration submitted in support of one of the motions to 

intervene. See Chamu Decl., Translator’s Declaration. 

Taken together, the district court’s conclusion that 

Appellants had offered no valid excuse or explanation for 

their delay was contrary to the record and clearly erroneous. 

The district court therefore committed legal error in failing 

to find that the third timeliness factor weighs in favor of 

intervention.

Notwithstanding our holding today, we emphasize that 

this factor cannot be distilled into a bright-line rule. That is, 

a delay of 71 or 79 days might, under different 

circumstances, weigh against timeliness. We merely hold 

today that, in light of all the circumstances presented here, 

the district court abused its discretion in failing to recognize 

that Appellants have justified their failure to move to 

intervene prior to mid-October 2013.

Because all three factors weigh in favor of timeliness, 

Appellants have established the first element for intervention 

as a matter of right.

C. Protectable Interest

Second, Appellants must show that they have a 

protectable interest in the Chanda Smith Litigation. LAUSD 

does not challenge the district court’s finding that Appellants 

have a protectable interest in receiving a free appropriate 

public education in conformity with their children’s IEPs. 

See 20 U.S.C. § 1412(a)(1)(A); Cal. Ed. Code § 5600, et seq. 

We agree that this is a protectable interest and find the 

second element for Rule 24(a) intervention to be established.
40 SMITH V. LAUSD

D. Practical Impairment

Third, Appellants must show that they are so situated that 

the disposition of the action without Appellants may as a 

practical matter impair or impede their ability to safeguard 

their protectable interest. As an alternative basis for denying 

Appellants’ motion to intervene, the district court found that 

Appellants would “not suffer a practical impairment of their 

interest in receiving a FAPE in accordance with their IEPs 

because the adoption of [Renegotiated] Outcome 7 does not 

deprive [Appellants] of special education centers as 

placement options or violate the IEP assessment process.” 

As a preliminary matter, we note that this statement is at least 

partly contradicted by the record: A number of LAUSD’s 

former special education centers are no longer accepting 

enrollment of Appellants’ children and similarly situated 

disabled students ages 6 to 18.

More to the point, the district court reasoned that denying 

intervention would not practically impair Appellants’ 

protectable interest, given the availability of individual, 

administrative due process proceedings for parents who 

disagree with LAUSD’s placement of their child. See Cal. 

Ed. Code § 56501, et seq.

23 We review the district court’s 

finding of no practical impairment to the putative class 

 23 Notably, the MCD “preclu[des] . . . any class member [from] 

bringing any class action claim . . . concerning the District’s compliance 

with IDEA or . . . concerning the provision of a free appropriate public 

school education.” The MCD carves out a few exceptions, including for 

administrative proceedings “to review the District’s compliance with its 

obligation to provide a free appropriate public education to any 

individual student.” (emphasis added). However, as members of the 

Chanda Smith class, Appellants are precluded by the MCD from 

bringing a separate class action challenging the legality of Renegotiated 

Outcome 7.
SMITH V. LAUSD 41

action intervenors because of the availability of individual 

remedies de novo, FFRF, 644 F.3d at 840, and conclude that 

the district court erred.

Courts have long recognized the benefits conferred by 

the class action mechanism over numerous individual 

actions. Class actions are used to “vindicate[e] . . . the rights 

of groups of people who individually would be without 

effective strength to bring their opponents into court at all.” 

Amchem Products, Inc. v. Windsor, 521 U.S. 591, 617 

(1997). Particularly where, as here, injunctive relief is 

sought, “[e]conomic reality dictates” that many challenges 

to LAUSD’s placement of disabled children must “proceed 

as a class action or not at all.” Eisen v. Carlisle & Jacquelin, 

417 U.S. 156, 161 (1974). In fact, a determination that the 

class action vehicle provides a superior mechanism for 

litigating LAUSD’s district-wide policies regarding the 

education of its disabled student population was already 

made at the commencement of the Chanda Smith 

Litigation—itself a class action. The denial of intervention 

here permits the Chanda Smith plaintiffs to pursue their 

education policy goals with the benefit of the class action 

mechanism, while denying Appellants the same. This result 

does—as a practical matter—impair Appellants’ ability to 

safeguard the interests of a sub-class of LAUSD students 

seeking retention of special education centers as placement 

options vis-à-vis Class Counsel’s and LAUSD’s interest in 

eliminating them. The impairment is especially perverse 

given that Appellants currently have children enrolled in 

LAUSD, while the named Chanda Smith plaintiffs’ children 

have long since left.

Not only are individual administrative challenges a 

comparatively inefficient and ineffective means of achieving 
42 SMITH V. LAUSD

system-wide relief,24 but the administrative proceedings 

permit Appellants to challenge only the effects of 

Renegotiated Outcome 7 on individual students—not the 

legality of Renegotiated Outcome 7 itself. See Cal. Educ. 

Code § 56501 (due process hearings are available to resolve 

disagreements as to the proper placement of an individual 

child). A collateral challenge on Renegotiated Outcome 7 is 

an inferior means of protecting the interests of LAUSD’s 

special education center population. Even if Appellants and 

every single special education student transferred to a 

general education campus pursuant to Renegotiated 

Outcome 7 to date were able successfully to challenge that 

placement through the administrative process, and even to 

secure a court order requiring LAUSD to reopen each child’s 

special education center, Renegotiated Outcome 7 would 

still mandate a 33 percent reduction in the opportunity for 

enrollment in special education centers. Thus, it would still 

require LAUSD to identify and transfer 33 percent of the 

special education center student population to general 

education schools, in effect creating a revolving door of 

transfers between special and general education campuses.

Of course, it is unlikely that all parents will undertake the 

time and monetary investment necessary to challenge 

LAUSD’s placement of their child. But that fact, again, 

leads us to conclude that the interests of the sub-class

Appellants seek to represent would be practically impaired 

if intervention is denied and parents of special education 

students are limited to individual challenges to LAUSD’s 

placement of their children. We accordingly hold that 

 24 Practical considerations, including the allocation of limited 

resources such as teachers and curriculum materials, also favor direct 

intervention in the litigation that has led to the adoption of an allegedly 

unlawful policy, rather than piecemeal efforts to avoid its effects.
SMITH V. LAUSD 43

Appellants’ interest in ensuring the availability of special 

education centers to LAUSD students (to the extent 

consistent with IEP and FAPE requirements) would, as a 

practical matter, be impaired if intervention is denied and 

Appellants are precluded from directly challenging the 

legality of Renegotiated Outcome 7 in the Chanda Smith

Litigation. To the extent there is any doubt as to Appellants’ 

establishment of this factor, our resolution of it in favor of 

intervention is consistent with the rule that “the requirements 

for intervention are [to be] broadly interpreted in favor of 

intervention.” Alisal Water Corp., 370 F.3d at 919.

E. Inadequate Representation

There is no dispute that Appellants’ interests are 

inadequately represented by the parties to this action: The 

current parties’ interest in transferring students and 

resources from special education centers to general 

education campuses is diametrically opposed to Appellants’ 

interest in retaining the system that was in place prior to 

Renegotiated Outcome 7. We have no difficulty finding this 

element met. Cf. Trbovich v. United Mine Workers of Am., 

404 U.S. 528, 538 n.10 (1972) (noting that the fourth 

element of Rule 24(a) intervention requires only a “minimal” 

showing that existing parties’ representation “may be” 

inadequate).

III.

In sum, Appellants have established all four elements of 

intervention as of right under Rule 24(a).

We accordingly REVERSE the district court’s denial of 

Appellants’ motion to intervene and REMAND for further 

proceedings consistent with this opinion.