Blount-Hill v. Zelman

636 F.3d 278, 78 Fed. R. Serv. 3d 1333, 2011 U.S. App. LEXIS 2932, 2011 WL 523086
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 16, 2011
Docket09-3952
StatusPublished
Cited by76 cases

This text of 636 F.3d 278 (Blount-Hill v. Zelman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blount-Hill v. Zelman, 636 F.3d 278, 78 Fed. R. Serv. 3d 1333, 2011 U.S. App. LEXIS 2932, 2011 WL 523086 (6th Cir. 2011).

Opinions

CLAY, J., delivered the opinion of the court, in which KENNEDY, J., joined. KETHLEDGE, J. (pp. 288-89), delivered a separate dissenting opinion.

[280]*280OPINION

CLAY, Circuit Judge.

HOPE Academy Northwest Campus (“Hope Northwest”), a community school in Cleveland, Ohio; Sharonda Perkins, a social worker and mother of a student at HOPE Northwest; Jessica Z. Velasquez, the mother of a first grade student at HOPE Northwest; and Anthony and Jennifer Robinson, the parents of three students at HOPE Northwest (collectively, “proposed Intervenors”), appeal the district court’s denial of their application to intervene as party defendants in the underlying action as a matter of right under Rule 24(a), and as a matter of discretion under Rule 24(b), of the Federal Rules of Civil Procedure. For the reasons set forth below, we AFFIRM the district court’s decision.

BACKGROUND

This appeal arises from a challenge to the constitutionality of the Ohio Community Schools Act (“OCSA”), Ohio Rev.Code §§ 3314.01, et seq., and “the funding mechanism for public schools as it relates to community schools and as implemented by Defendant.” (Third Am. Compl. ¶ 1.) The OCSA established a charter school system in Ohio comprised of “community schools,” which operate as public schools that are “independent of any school district,” 0. R.C. § 3314.01, and exempt from many state laws. Id. § 3314.04. Although included in the “state’s program of education,” id. § 3314.01, a community school is governed by a contract between its founder and a statutorily authorized “sponsor.” Id. § 3314.02(C)(1).

Authorized sponsors may include the state or local board of education, certain tax-exempt entities, the governing board of any educational service center, or authorities designated by a state university board. Id. Interested parties may establish a community school by converting an existing public school, or creating a new school in a “challenged school district,” so long as an authorized sponsor agrees to enter into a contract. Id. § 3314.02(C). The statute defines a “challenged school district” as “meaning] any of the following: (a) A school district that is part of the pilot project area; (b) A school district that is either in a state of academic emergency or in a state of academic watch under section 3302.03 of the Revised Code; [or] (c) A big eight school district,” which the statute defines as a district meeting certain numerical thresholds. See id. §§ 3314.02(A)(3)-(4).

Because start-up community schools must be established in a “challenged school district,” Plaintiffs argue that the OCSA disproportionately benefits minority students because, as Plaintiffs contend, challenged school districts are disproportionately populated by minority students. Plaintiffs also object to the manner in which community schools are funded. In contrast to public schools, community schools are almost wholly state-funded and receive no funding from local sources. Plaintiffs allege that this is unconstitutional because the state grants community schools more money per pupil than it grants to traditional public schools.

A. Related State Court Litigation

This case is one of at least three that have challenged the constitutionality of the OCSA. In May of 2001, various plaintiffs filed two actions in Franklin County state court challenging the OCSA under the Ohio Constitution.1 The plaintiffs in each [281]*281action were represented by, among others, David Latanick, an attorney retained by the Ohio Education Association (“OEA”). In June of 2004, Plaintiffs, also represented by Latanick, among others, filed the present action, challenging the OCSA under the U.S. Constitution. After the Ohio Supreme Court upheld the OCSA under the Ohio Constitution,2 the state plaintiffs voluntarily dismissed the two state actions on December 13, 2006 and March 2, 2007. On March 23, 2007, another group of plaintiffs, also represented by Latanick, filed a third state action attacking the OCSA.

According to proposed Intervenors, shortly after filing the third state lawsuit, Hinton v. Ohio State Board of Education, attorneys for the OEA began negotiations with then-Ohio Attorney General Marc Dann in an effort to settle both Hinton and the present federal litigation. Proposed Intervenors claim that in early September of 2007, the OEA agreed to dismiss Hinton, and likely dismiss the present case, if the Attorney General would agree to pursue litigation to close certain “under-performing and poorly managed community schools,” which the parties defined as community schools that:

Are ranked in academic emergency or academic watch on Local Report Cards for two of the last three reported school years and whose Performance Index Scores on the most recent Local Report Cards are less than that of the school districts from which they draw the largest number of students. — OR—Have been reported by their sponsors to the Ohio Department of Education as being in non-compliance with their academic assessments and accountability plans or their finance plans as set forth in their contracts. — OR—Have been found by the Auditor of State to have unauditable records in the fiscal year most recently the subject of an audit. — OR—Have bad findings for recovery issued against them by the Auditor of State in two or more of the three most recently reported fiscal years covered by regular audits. — OR—Have failed to correct findings issued by the Auditor of State for two or more of the most recent fiscal years covered by regular audits.

It appears from the record that proposed Intervenor HOPE Northwest was identified by the parties to the settlement as a school that is “ripe for closing” under these guidelines.

Pursuant to the settlement agreement, the Hinton plaintiffs voluntarily dismissed their state action on September 14, 2007. That same day, Plaintiffs moved to stay the present federal case to permit settlement negotiations. For his part, Attorney General Dann commenced litigation against community schools that the Attorney General deemed to be failing and, despite public controversy, Dann’s successors, then-interim Attorney General Nancy Rogers and then-Attorney General Richard Cordray, continued to support the litigation against “underperforming and poorly managed community schools.”

B. Pending Federal Litigation

The present federal litigation commenced on June 9, 2004. At that time, plaintiff education association members and parents of school-aged children in Ohio filed a Complaint in the district court pursuant to 42 U.S.C. § 1983 against the Ohio Department of Education, the Ohio Board of Education, and Ohio Superintendent of Public Instruction Susan Tave Zel[282]*282man, challenging OCSA under the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution. Defendants moved to dismiss on June 30, 2005. Plaintiffs thereafter voluntarily dismissed all defendants except Zelman on August 11, 2005,3 and filed an Amended Complaint on October 6, 2005.

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636 F.3d 278, 78 Fed. R. Serv. 3d 1333, 2011 U.S. App. LEXIS 2932, 2011 WL 523086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blount-hill-v-zelman-ca6-2011.