Roy Fisher; v. State of Arizona

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY FISHER; et al.,
Plaintiffs - Appellees,
UNITED STATES OF AMERICA,
Intervenor-Plaintiff -
Appellee,
v.
STATE OF ARIZONA,
Intervenor - Appellant,
v.
TUCSON UNIFIED SCHOOL
DISTRICT,
Defendant - Appellee.
No. 13-15691
D.C. No. 4:74-cv-00090-DCB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
FILED
DEC 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Argued and Submitted November 19, 2014
San Francisco, California
Before: THOMAS, Chief Judge, and REINHARDT and CHRISTEN, Circuit
Judges.
The State of Arizona appeals the denial of its second motion for
reconsideration of the district court’s order denying it leave to intervene. 1 We have
jurisdiction under 28 U.S.C. § 1291. We review for abuse of discretion, Sch. Dist.
No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993),
and we affirm the district court’s ruling.
In its motion to intervene, Arizona argued it should be permitted to intervene
in order to ensure that any ethnic studies courses called for in the Unitary Status
Plan would not violate state law. It provided a detailed discussion of A.R.S. § 15-
112. Arizona asserted its interest “is ensuring that the interpretation and operation
of state law is considered in the development of new ethnic studies curricula.”
Arizona maintained that any implementation of ethnic studies courses in violation
of A.R.S. § 15-112 “would unconstitutionally usurp the State’s right to administer
its laws.”
1 Arizona timely appealed only the district court’s February 6, 2013
order. That order denied a motion for reconsideration, not, as Arizona now
contends, a motion to intervene.
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The district court denied Arizona’s motion to intervene as untimely because
it reasonably determined that allowing Arizona to intervene shortly before the
filing date for the draft Unitary Status Plan could prejudice the existing parties.
See League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302, 1308 (9th
Cir. 1997) (explaining timeliness is a threshold requirement for mandatory and
permissive intervention, and courts determine timeliness by considering the stage
of the proceedings, prejudice to other parties, and the reason for and length of the
delay). The court also noted that unless Arizona intended to assert “that any and
all ethnic studies and/or curriculum will per se violate A.R.S. § 15-112, the Special
Master has asserted an approach, which on its face does not appear to be contrary
to Arizona law.” 2 The district court granted Arizona leave to file an amicus brief
voicing any objections it might have to the draft Unitary Status Plan.
Thereafter, the district court issued a revised scheduling order granting the
parties’ request for an opportunity to work collaboratively to resolve objections to
the initial Unitary Status Plan. In response, Arizona requested that the district
court reconsider its denial of leave to intervene, arguing the revised scheduling
order would deprive it of a meaningful opportunity to object to any curricular
2 Arizona conceded at oral argument before our court that there are
certain types of culturally relevant courses that would conform to state law.
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provisions in the draft Unitary Status Plan. The district court denied Arizona’s
motion.
After the draft Unitary Status Plan was filed, Arizona filed an amicus brief
objecting to language ultimately located in Section V.E.6 of the final Unitary
Status Plan, which requires the Tucson Unified School District to “develop and
implement culturally relevant courses.” Shortly thereafter, Arizona filed a second
motion for reconsideration. The motion argued the district court should reconsider
the denial of leave to intervene due to “a major change in circumstance that was
unforeseeable at the time Arizona filed its Motion to Intervene,” namely, that the
Tucson Unified School District’s newly elected governing board had voted not to
renew its objections to Section V.E.6.
In its February 6, 2013 order, the district court addressed the arguments
raised in Arizona’s amicus brief and also ruled on Arizona’s second motion for
reconsideration. The court did not abuse its discretion by denying the second
motion for reconsideration, but rather reasonably determined that the change in the
Tucson Unified School District’s governing board did not warrant reconsideration
because “there is no issue ripe for resolution until the culturally relevant courses
are developed.” See City of Emeryville v. Robinson, 621 F.3d 1251, 1259 (9th Cir.
2010) (intervenor cannot rely on interest that is remote and speculative). The court
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also reasoned that the Tucson Unified School District had ample incentive to
comply with state law.
Arizona argues that the district court mischaracterized its interest as ensuring
that proposed ethnic studies courses would not violate state law, when Arizona’s
interest is really in ensuring that the district court did not exceed the scope of its
remedial authority and infringe on the State’s Tenth Amendment interest in setting
education policy. But the latter argument was made by Arizona in its amicus brief,
not in its motion to intervene. The interest Arizona asserted in its motion to
intervene was ensuring that proposed ethnic studies courses would not violate
A.R.S. § 15-112. Arizona did not argue in its second motion for reconsideration
that its interest had changed; rather, it argued that the Tucson Unified School
District no longer adequately represented its interest. The district court did not
mischaracterize the interest asserted by Arizona in support of its request to
intervene.
Arizona’s motion for judicial notice, filed on August 16, 2013, is denied. It
does not conform to Federal Rule of Evidence 201.
The motion for judicial notice is DENIED. The order denying
reconsideration is AFFIRMED.
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