    Case: 13-31262   Document: 00512591800    Page: 1   Date Filed: 04/10/2014




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                              No. 13-31262                            FILED
                            Summary Calendar                      April 10, 2014
                                                                 Lyle W. Cayce
                                                                      Clerk
OLESS BRUMFIELD; ET AL.,

                                               Plaintiffs,

UNITED STATES OF AMERICA,

                                               Intervenor–Appellee,

versus

WILLIAM J. DODD,
Superintendent of Public Education of the State of Louisiana; ET AL.,

                                               Defendants,

MITZI DILLON; TITUS DILLON; MICHAEL LEMANE;
LAKISHA FUSELIER; MARY EDLER;
LOUISIANA BLACK ALLIANCE FOR EDUCATIONAL OPTIONS,

                                               Movants–Appellants


                Appeal from the United States District Court
                   for the Eastern District of Louisiana




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


     In this appeal of an order denying intervention, the movants are parents
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                                  No. 13-31262
whose children receive school vouchers via Louisiana’s Scholarship Program.
The legislature established the Program in 2012 to provide funding to low-
income parents with children in failing schools so that they may have the
option of sending them to better schools, including private schools, of their own
choosing. LA. REV. STAT. ANN. § 17:4013. The parents seek to intervene in this
litigation between Louisiana and the federal government over the state’s
voucher program. We reverse the order denying intervention.


                                            I.
      On August 22, 2013, the United States filed a motion seeking “perman-
ently [to] enjoin the State of Louisiana . . . from awarding any school vouchers
. . . to students attending school in districts operating under federal desegre-
gation orders unless and until the State receives authorization from the appro-
priate federal court overseeing the applicable desegregation case.” This case,
as reflected in the caption, involves the desegregation order issued in Brum-
field v. Dodd, 405 F. Supp. 338 (E.D. La. 1975) (three-judge court), which pro-
hibited the provision of public funds or other assistance “to any racially dis-
criminatory private school or to any racially segregated private school” and
created a certification process to establish private-school eligibility for receiv-
ing public funds. Id. at 349.
      The United States initially sought the injunction on the ground that the
voucher program constituted public assistance to private schools in violation
of the desegregation order: “The State’s actions in using public funds to trans-
fer students in districts operating under desegregation orders to schools which
they are not zoned to attend,” argued the government, “cause irreparable
injury to the court-ordered desegregation process, the parties to the desegre-
gation action, and ultimately to the students and the communities governed by
the desegregation decree.” The government further urged that the program
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“deprives the students of their right to a desegregated educational experience.”
      The parents moved to intervene as a matter of right for the limited pur-
pose of opposing the motion for permanent injunction. The United States, how-
ever, claims that on September 23, 2013, it had informed the court that,
      in light of the information already provided by the State and the
      information the court had ordered the State to produce, the only
      relief the United States now sought was the creation of a process
      under which the State would provide the information needed to
      assess and monitor the voucher program’s implementation consis-
      tent with the orders in this case on a regular and timely basis.

Therefore, according to the United States, it no longer sought the relief
requested in its August motion, and the intervention motion did not explain
“how [the parents’] interests could be affected by the relief now being sought.”
      The district court agreed with the United States and denied interven-
tion. “Because the Motion that Proposed Intervenors sought to oppose no
longer requests the remedy Proposed Intervenors objected to,” the court held,
“they lack the necessary interest to intervene. The only remaining issues in
the case, at this time, [a]ffect the sharing of information between the United
States and the State of Louisiana. These issues simply do not [a]ffect the inter-
ests of Proposed Intervenors.” The district court did allow for the possibility of
a renewed intervention motion should the United States seek its original relief.


                                            II.
      A court “must permit anyone to intervene who . . . claims an interest
relating to the property or transaction that is the subject of the action, and is
so situated that disposing of the action may as a practical matter impair or
impede the movant’s ability to protect its interest, unless existing parties ade-
quately represent that interest.” FED. R. CIV. P. 24(a). A party seeking to
intervene as of right must satisfy four requirements:

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      (1) The application must be timely; (2) the applicant must have an
      interest relating to the property or transaction that is the subject
      of the action; (3) the applicant must be so situated that the dispo-
      sition of the action may, as a practical matter, impair or impede its
      ability to protect its interest; and (4) the applicant’s interest must
      be inadequately represented by the existing parties to the suit.

Sierra Club v. Espy, 18 F.3d 1202, 1204–05 (5th Cir. 1994) (citing New Orleans
Pub. Serv., Inc. v. United Gas Pipe Line Co. (“NOPSI”), 732 F.2d 452, 463 (5th
Cir. 1984) (en banc)).
      Although the movant bears the burden of establishing its right to inter-
vene, Rule 24 is to be liberally construed. 6 JAMES W. MOORE ET AL., MOORE’S
FEDERAL PRACTICE [hereinafter MOORE’S] § 24.03[1][a], at 24-22 (3d ed. 2008);
In re Lease Oil Antitrust Litig., 570 F.3d 244, 248 (5th Cir. 2009). The inquiry
“is a flexible one, and a practical analysis of the facts and circumstances of each
case is appropriate.” 6 MOORE’S § 24.01[1][a], at 24-24; Edwards v. City of
Hous., 78 F.3d 983, 999 (5th Cir. 1996) (en banc). We review a denial of a right
to intervene de novo. Sierra Club, 18 F.3d at 1205.


                                       III.
      Because timeliness is not at issue, we address only the other three
prongs. Before doing so, however, we address a material factual dispute.


                                        A.
      The United States contends that the parents do not have an interest in
this litigation—and that if they do, it is not likely to be impaired—because they
have not explained how the new relief the government seeks involves or
impairs any interest of the parents. The government also maintains that the
parents’ arguments as to interest and impairment are therefore waived
because they were not presented to the district court. In other words, the

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government hinges its argument respecting these prongs almost entirely on its
claim that it is no longer seeking the relief it previously sought in its August
motion. We now explore that claim.
      As previously discussed, in that motion the government sought a per-
manent injunction of the voucher program “unless and until the State receives
authorization from the appropriate federal court overseeing the applicable
desegregation case.” The district court issued an order on September 18 that
prompted the United States to supplement its initial August motion.         The
United States claims that as a result of that order, the three objectives of its
August motion “are now in the process of being fulfilled” because the state has
agreed to provide, to the government, data on the voucher program.
      As the government states in its supplemental motion, however, the
September 18 order required the parties to brief and argue two legal issues:
whether the desegregation order applies to the Scholarship Program, and if so,
whether there is any need to amend existing orders. Significantly, in its sup-
plemental motion the United States rephrased the district court’s first question
as follows: “(1) [D]oes the desegregation order issued in Brumfield apply to the
Voucher Program so as to require the State to obtain authorization from the
Court prior to implementation?” The government then stated, “To the extent
this Court determines it appropriate to resolve those two questions in the
affirmative, and a schedule is put in place to facilitate compliance and the
timely sharing of school voucher program data and analysis by Louisiana as
requested by the United States, it is the position of the United States that the
relief sought by the August Motion will have been satisfied.”
      It is not credible for the United States to claim that the relief it is now
seeking differs from the relief the parents opposed in the August motion, in
which it sought to enjoin the program unless and until the State receives
authorization from the appropriate federal court overseeing the applicable
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desegregation case. In the supplemental motion, the government explains that
to the extent that the Court affirmatively answers the first question, it believes
the goal of its prior motion has been satisfied. But an affirmative answer to
the first question as rephrased by the government would be “the desegregation
order applies” and so “the state requires authorization from the court prior to
implementation.” There is no real difference between that relief and the relief
previously sought. Both would demand an injunction unless and until the state
obtained court authorization. 1


                                            B.
                                            1.
       For intervention, a movant’s interest must be “direct, substantial, and
legally protectable.” 6 MOORE’S § 24.01[2][a], at 24-25; Edwards, 78 F.3d at
1004; Sierra Club, 18 F.3d at 1207. This court several times has found inter-
ests remarkably similar to the interest of the parents here to be sufficient.
       In Black Fire Fighters Ass’n of Dallas v. City of Dallas, Texas, 19 F.3d
992, 994 (5th Cir. 1994), the city entered into a consent decree with an
employee group, agreeing to give a specified number of promotions to black
officers who would not otherwise be chosen because of their scores on an exam.
The association challenged the intervention of a different group of firefighters.
We held that “[a] decree’s prospective interference with promotion opportuni-
ties can justify intervention.” Id. In Sierra Club, 18 F.3d at 1207, we held that
lumber companies had an interest sufficient for intervention because their
“existing timber contracts” were “threatened by” an injunction potentially



       1 Therefore, to the extent the government suggests that the parents have waived their
contentions because they failed to raise any arguments with respect to the purportedly dif-
ferent relief sought, we disagree.
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prohibiting the Forest Service from selling certain timber.
      In Edwards, our en banc court reversed a denial of intervention on
grounds similar to those in Black Fire Fighters. There, the police department
had entered into a consent decree with black and Hispanic officers; the district
court had denied intervention by a group of white, female, and Asian-American
officers. Edwards, 78 F.3d at 989. The main complaint of that group was “that
the Consent Decree adversely affects the interests of its members in having
equal access to a promotion system and promotion opportunities within the
[department] for the ranks of Sergeant and Lieutenant without reference to
race, color, or national origin.” Id. at 1004. We held that that complaint stated
a sufficient interest for intervention.
      Here, a potential decree—an amendment to the original decree in this
action from 1975—similarly threatens a “prospective interference with” educa-
tional opportunities. Further, any decree might “adversely affect[] the inter-
ests of [the parents] in having equal access to . . . opportunities . . . without
reference to race, color, or national origin.” Finally, “existing” scholarships are
“threatened by” a potential bar on certain kinds of vouchers. The United States
points to United States v. Perry County Board of Education, 567 F.2d 277 (5th
Cir. 1978), for the proposition that this court has found that parents do not
have a sufficient interest to intervene in desegregation proceedings.         The
parents challenge the very premise that the Scholarship Program is subject to
any such proceedings. Even so, an old desegregation case involving a policy
dispute over the location of a newly built school, see Perry, 567 F.2d at 279–80,
is far less apposite than are Sierra Club, Edwards, and Black Fire Fighters.
      To be sure, the United States is claiming that, at the moment, it has no
intention of halting the voucher program or depriving anyone of an existing
scholarship. Yet, if a modification of the decree requiring court approval means
anything, it signifies that the government will have the ability to attempt to
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adjust some element of the Scholarship Program—either by changing which
students receive the aid or changing the schools in which they are placed—if
not to urge that the program be killed entirely. The possibility is therefore real
that if the parents are not able adequately to protect their interests, some
students who otherwise would get vouchers might not get them or might not
get to select a particular school they otherwise would choose. The parents need
not wait to see whether that ultimately happens; they have already described
an interest justifying intervention.
      The public interest easily supports intervention: “The interest require-
ment may be judged by a more lenient standard if the case involves a public
interest question or is brought by a public interest group. The zone of interests
protected by a constitutional provision or statute of general application is argu-
ably broader than are the protectable interests recognized in other contexts.”
6 MOORE’S § 24.03[2][c], at 24-34 (citing NOPSI, 732 F.2d at 464–65). Our
en banc court has explained that a zone-of-interest analysis in standing doc-
trine can bear on the interest question for purposes of intervention. NOPSI,
732 F.2d at 464–65.
      The purported aim of the United States is to enforce the Equal Protection
Clause of the Fourteenth Amendment. If any group can be described as within
the zone of interest protected by that clause, surely it is these mostly minority
parents who believe that the best way to ensure equal protection of the laws is
to give them the opportunity—along with other parents who live in poverty
and whose children are in failing schools—to send their children to better
schools. The parents are also within the zone of interest of the legislation
enacting the Scholarship Program; indeed, these parents and their children
were its primary intended beneficiaries. They therefore assert not only a mat-
ter of public interest but matters more relevant to them than to anyone else.


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                                              2.
       “Once a movant has successfully established a sufficient interest in the
subject of the action, the movant must demonstrate that disposition of that
action may, as a practical matter, impair or impede the movant’s ability to
protect that interest.” 6 MOORE’S § 24.03[3][a], at 24-41; Sierra Club, 18 F.3d
at 1207. The impairment requirement does not demand that the movant be
bound by a possible future judgment, and the current requirement is a great
liberalization of the prior rule. 6 MOORE’S § 24.03[3][a], at 24-41; Edwards,
78 F.3d at 1004–05. The impairment must be “practical,” however, and not
merely “theoretical.” 6 MOORE’S § 24.03[3][a], at 24-42.
       The parents have established that their interests might be impaired by
this action.     If the desegregation order is modified to require prior court
approval of the Program’s implementation, then some parents are at risk of
losing vouchers or their full range of school choices. We found similarly in
Edwards, 78 F.3d at 1005, that the officers would be bound by the consent
decree and therefore would be “limited in their future promotion
opportunities.”
       To be sure, there is as of yet no order requiring a change in the voucher
program. But the parents do not need to establish that their interests will be
impaired. Rather, they must demonstrate only that the disposition of the
action “may” impair or impede their ability to protect their interests.
6 MOORE’S § 24.03[3][a], at 24-41. 2 It would indeed be a questionable rule that
would require prospective intervenors to wait on the sidelines until after a
court has already decided enough issues contrary to their interests. The very


       2See also Grutter v. Bollinger, 188 F.3d 394, 399 (6th Cir. 1999) (“To satisfy this ele-
ment of the intervention test, a would-be intervenor must show only that impairment of its
substantial legal interest is possible if intervention is denied. This burden is minimal.”
(emphasis added)).
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purpose of intervention is to allow interested parties to air their views so that
a court may consider them before making potentially adverse decisions.
      In Grutter, the court found the impairment element satisfied with
respect to groups of minority students because “[t]here is little room for doubt
that access to the University for African–American and Latino/a students will
be impaired to some extent and that a substantial decline in the enrollment of
these students may well result if the University is precluded from considering
race as a factor in admissions.” Grutter, 188 F.3d at 400 (emphasis added).
Here, similarly, the parents’ access to vouchers will be impaired because a
decline in prospects for obtaining vouchers may well result if the district court
holds that the Scholarship Program is subject to the desegregation order.


                                         3.
      “The final requirement for intervention as a matter of right is that the
applicant’s interest must be inadequately represented by the existing parties
to the suit. The applicant has the burden of demonstrating inadequate repre-
sentation, but this burden is ‘minimal.’” Sierra Club, 18 F.3d at 1207. “The
burden on the movant is not a substantial one. The movant need not show that
the representation by existing parties will be, for certain, inadequate. . . . [T]he
applicant’s burden on this matter should be viewed as ‘minimal.’” 6 MOORE’S
§ 24.03[4][a], at 24-47 (citing Trbovich v. United Mine Workers of Am., 404 U.S.
528, 538 n.10 (1972)).
      This requirement, however, must have some teeth, so there are two
presumptions of adequate representation. Edwards, 78 F.3d at 1005. The first
arises where one party is a representative of the absentee by law. Id. Here
there is no suggestion that the state is the parents’ legal representative. The
second presumption “arises when the would-be intervenor has the same ulti-
mate objective as a party to the lawsuit,” in which event “the applicant for
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intervention must show adversity of interest, collusion, or nonfeasance on the
part of the existing party to overcome the presumption.” Id.
      The second presumption does not apply here. Although both the state
and the parents vigorously oppose dismantling the voucher program, their
interests may not align precisely.      In Sierra Club the Forest Service was
defending against the claims of various environmental groups and ultimately
lost on the merits. A preliminary injunction was therefore issued, whereupon
the Service indicated it would comply with the injunction and stop selling cer-
tain kinds of timber. It was at that point that the timber companies attempted
to intervene. Sierra Club, 18 F.3d at 1204. The plaintiffs similarly contended
that the Service adequately represented the movants’ interest because the
interests were essentially identical.    Id. at 1207.   We rejected that claim
because in complying with the injunction, the Service would be acting contrary
to the interests of the companies. Id. at 1207–08.
      To be sure, that may not be enough to satisfy the inadequate-
representation prong generally; if it could, then no analysis of adequacy of
representation during trial would be necessary. In Sierra Club the intervenors
attempted to intervene after the injunction had issued; here, on the other hand,
there is yet no injunction.   Nonetheless, in Sierra Club we bolstered our
reasoning by noting that “[t]he government must represent the broad public
interest, not just the economic concerns of the timber industry,” and therefore
the timber groups satisfied the minimal burden of showing inadequacy.
      Although a private group does not always satisfy this prong just because
a governmental entity is on the same side of an issue, in this case the parents
have easily met their minimal burden. The state has many interests in this
case—maintaining not only the Scholarship Program but also its relationship
with the federal government and with the courts that have continuing deseg-
regation jurisdiction. The parents do not have the latter two interests; their
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only concern is keeping their vouchers. We cannot say for sure that the state’s
more extensive interests will in fact result in inadequate representation, but
surely they might, which is all that the rule requires.
       Further, the parents are staking out a position significantly different
from that of the state, which apparently has conceded the continuing jurisdic-
tion of the district court. For example, the state has admitted that “the Schol-
arship program does constitute State aid subject to the orders and decrees in
this case,” but the parents challenge that notion, citing Zelman v. Simmons-
Harris, 536 U.S. 639 (2002), for the proposition that school vouchers do not
constitute aid to private schools.
       In Edwards the defendant city thought it needed to “change the existing
promotional policies and procedures” of the police department, whereas the
group attempting to intervene urged that those policies needed no adjustment.
Edwards, 78 F.3d at 1005. That was enough to rebut the presumption of ade-
quate representation stemming from purportedly identical ultimate objectives.
Here the case for intervention is even stronger. First, it is not evident that the
ultimate-objective presumption of adequate representation even applies
because the state has more extensive interests to balance than do the parents.
The lack of unity in all objectives, combined with real and legitimate additional
or contrary arguments, is sufficient to demonstrate that the representation
may be inadequate, so this requirement of Rule 24(a) is met. 3
       Because the parents have met the requirements for intervention as of
right, the denial of their motion to intervene is REVERSED.


       3 We note that parents were granted intervention in Simmons-Harris, and although
state-court cases are not dispositive or binding on us, our ultimate conclusion is supported
by other school-voucher cases in which parents were allowed to intervene. See, e.g., Meredith
v. Pence, 984 N.E.2d 1213 (Ind. 2013); Owens v. Colo. Cong. of Parents, Teachers & Students,
92 P.3d 933 (Colo. 2004); Kotterman v. Killian, 972 P.2d 606 (Ariz. 1999); Jackson v. Benson,
578 N.W.2d 602 (Wis. 1998).
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