IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT MRS. LORENE JOSHUA, ET AL.

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1 Case 4:82-cv DPM Document 4638 Filed 10/07/11 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION LITTLE ROCK SCHOOL DISTRICT PLAINTIFF v. 4:82-cv DPM PULASKI COUNTY SPECIAL SCHOOL DISTRICT NO. 1, ET AL. MRS. LORENE JOSHUA, ET AL. KATHERINE KNIGHT, ET AL. DEFENDANTS INTERVENORS INTERVENORS REPLY TO PCSSD AND NLRSD RESPONSE TO CHARTER SCHOOL INTERVENORS MOTION TO INTERVENE PCSSD and NLRSD 1 do not dispute whether the Charter School Intervenors motion was timely, whether they have an interest in the action, or whether their rights could be impaired as a result of LRSD s Motion to Enforce the Settlement Agreement. See PCSSD and NLRSD Response brief; see also Medical Liability Mutual Ins. Co. v. Alan Curtis LLC, 485 F.3d 1006, 1008 (8th Cir. 2007) (standard for intervention as a matter of right). PCSSD and NLRSD argue that since the [State Board] approved the charters, the State Board will represent the Charter School Intervenors 1 The Charter School Intervenors will reply to LRSD s response in a separate reply brief. The State did not object or respond to the Charter School Intervenors motion to intervene.

2 Case 4:82-cv DPM Document 4638 Filed 10/07/11 Page 2 of 6 interests in the charters. PCSSD and NLRSD Response Brief at p. 2. The State Board cannot adequately protect the Charter School Intervenors interests in their charters. The State Board is the counterparty and has conflicting interests in the charters. The State Board must regulate the Charter School Intervenors, not protect their interests. Ark. Code Ann The Attorney General is required to represent the interests of the State in federal courts. Ark. Code Ann (a). Contracting parties may intervene as a matter of right in lawsuits involving their counterparty when their contract rights are at risk. CRI, Inc. v. Watson, 608 F.2d 1137, 1140 (8th Cir. 1979) (proposed intervenor s interest in contract clearly sufficient interest to grant intervention as of right); Aurora Loan Servs. v. Craddieth, 442 F.3d 1018, 1023 (7th Cir. 2006) (interest in contract justifies intervention as of right); Kleissler v. United States Forest Serv., 157 F.3d 964, 973 (3d Cir. 1998) (party to existing contract had interest supporting intervention as of right). Charter schools are often granted intervention to advance and protect their rights under their charters and state law even when the government authority responsible for their charters is a party in the case. State ex rel. Bd. of Educ. v. City of Memphis, 329 S.W.3d 465, 467 n.3 (Tenn. Ct. App. 2010) (granting charter school s motion to intervene despite presence of board of 2

3 Case 4:82-cv DPM Document 4638 Filed 10/07/11 Page 3 of 6 education where requested relief would directly impact the contractual agreement between [charters] and the Board ); see also Cleveland v. Union Parish Sch. Bd., 570 F.Supp.2d 858, 859 (W.D. La. 2008) (granting charter school s motion to intervene in desegregation case despite representation by county school board); Berry v. School Dist., 56 F.Supp.2d 866, 868 (W.D. Mich. 1999) (granting charter schools motion to intervene in desegregation case despite presence of state board of education); California School Bds. Assn. v. State Bd. of Educ., 191 Cal. App. 4th 530, 542 (Cal. App. 3d Dist. 2010) (granting charter schools motion to intervene despite presence of state board of education). NLRSD and PCSSD offer no response to these authorities. LRSD targeted the Charter School Intervenors contract rights in its Motion to Enforce the 1989 Settlement Agreement. The Charter School Intervenors did not seek out this conflict, but they have the right to protect their contracts from legal challenge. The Charter School Intervenors are fundamentally different from the Bollen group. The Charter School Intervenors have existing contracts and thousands of existing students, while the Bollen group sought a vote to create a new district in Jacksonville that did not yet exist. The Bollen group acted under statutes and procedures for formation of a school district that 3

4 Case 4:82-cv DPM Document 4638 Filed 10/07/11 Page 4 of 6 have no bearing on the existing contract rights of the Charter School Intervenors here. The Bollen group attempted to intervene in 2003 without having been attacked by a party to this case, while the Charter School Intervenors were targeted for attack. The State Board stated on the record that its position was substantially similar to the argument advanced by the Bollen group. Here, the State Board has not objected or even responded to the Charter School Intervenors motion, much less stated that it would advance arguments substantially similar to those of the Charter School Intervenors. Indeed, in the Grutter review briefs, the arguments are very different. PCSSD and NLRSD do not provide any authority for why the Charter School Intervenors should not be allowed to intervene permissively. Nor have PCSSD or NLRSD joined in the LRSD Motion to Enforce 1989 Settlement Agreement, and they would appear to have no interest one way or the other in the motion to intervene. Motions to intervene are construed liberally with doubts resolved in favor of the proposed intervenor. Turn Key Gaming, Inc. v. Oglala Sioux Tribe, 164 F.3d 1080, 1081 (8th Cir. 1999). This Court should grant intervention as a matter of right or permissive intervention to the Charter School Intervenors. 4

5 Case 4:82-cv DPM Document 4638 Filed 10/07/11 Page 5 of 6 Respectfully submitted, Michael K. Wilson, Ark. Bar # Military Road Jacksonville, Arkansas mike.wilson@comcast.net Telephone: (501) And WILLIAMS AND ANDERSON PLC 111 Center Street Twenty-Second Floor Little Rock, Arkansas Telephone: (501) By: /s/ Jess Askew III Jess Askew III, Ark. Bar #86005 Marie-Bernarde Miller, Ark. Bar #84107 Jamie K. Fugitt, Ark. Bar # jaskew@williamsanderson.com mmiller@williamsanderson.com jfugitt@williamsanderson.com Attorneys for Charter School Intervenors 5

6 Case 4:82-cv DPM Document 4638 Filed 10/07/11 Page 6 of 6 CERTIFICATE OF SERVICE I certify that on October 7, 2011, I electronically filed the forgoing with the Clerk of the Court using the CM/ECF system, which shall send notification of such filing to the following: Christopher J. Heller heller@fridayfirm.com John Clayburn Fendley, Jr. clayfendley@comcast.net Scott P. Richardson scott.richardson@ag.state.ar.us M. Samuel Jones, III sjones@mwsgw.com Stephen W. Jones sjones@jacknelsonjones.com John W. Walker johnwalkeratty@aol.com Mark Burnette mburnette@mbbwi.com Margie Powell mqpowell@odm .com /s/ Jess Askew III Jess Askew III 6