In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2707
Reid L., et al.,
Plaintiffs-Appellants,
v.
Illinois State Board of Education,
Glenn W. McGee, in his capacity as
Illinois State Superintendent of
Education, and Corey H., et al.,
Defendants-Appellees.
No. 01-3432
Corey H., et al.,
Plaintiffs-Appellees,
v.
Board of Education of the City of
Chicago, et al.,
Defendants-Appellees,
Appeal of: Reid L., et al.,
Prospective Intervenors.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 01 C 4180, 92 C 3409--Robert W. Gettleman, Judge.
Argued September 25, 2001 and February 15, 2002--
Decided May 13, 2002
Before Rovner, Diane P. Wood, and Evans,
Circuit Judges.
Diane P. Wood, Circuit Judge. In these
two cases, which we have consolidated
solely for the purpose of issuing our
opinion, certain parties are seeking to
enjoin the Illinois State Board of
Education (ISBE) from promulgating and
implementing new rules on special
education teacher certification. The Reid
L. parties are minor children enrolled in
Illinois public schools outside of
Chicago; they all have been classified by
their respective school districts as
having disabilities, within the meaning
of the Individuals with Disabilities
Education Act (IDEA), 20 U.S.C. sec. 1400
et seq. The Corey H. parties are their
counterparts within the City of Chicago.
After a great deal of litigation, which
we describe below, the district court
entered a remedial decree designed to
bring the Illinois system of special
education teacher certification into
compliance with various requirements of
the IDEA, particularly its directive that
students be educated in the least
restrictive environment, see 20 U.S.C.
sec. 1412(a)(5). The two appeals before
us represent the efforts of the Reid L.
parties to prevent the new rules
developed pursuant to the district
court’s order from entering into effect
(or, if necessary, to roll them back).
The Reid L. appeal (No. 01-2707) arises
from the district court’s denial of a
preliminary injunction that would have
stopped the rules from going into effect
on July 1, 2001. The Reid L. parties and
certain teachers also tried to intervene
directly in the Corey H. litigation; the
Corey H. appeal (No. 01-3432) is brought
by the would-be intervenors to challenge
the denial of their motions to intervene.
We conclude that the district court did
not err either in refusing to enjoin the
new rules or in denying the Reid L.
parties’ attempt to intervene in the
Corey H. case; we therefore affirm.
I
In order to place the present dispute in
context, we must look back a quarter of a
century to the way in which children with
disabilities have received their
education in the Chicago Public Schools.
In 1975, Congress passed the Education
for All Handicapped Children Act, Pub. L.
94-142 (Nov. 29, 1975), which for the
first time required that children with
disabilities be educated with the least
restrictive accommodations possible. In
1990, Congress replaced that statute with
the IDEA. In the meantime, however,
Chicago had done little to change the way
in which it handled the education of the
affected students. Briefly put, it relied
heavily on categorization of both
students and teachers, and had little
flexibility for cross-categorical or
individualized arrangements.
On May 22, 1992, the Corey H. plaintiffs
and their parents, acting on behalf of
themselves and all similarly situated
disabled students attending the Chicago
Public Schools (CPS), filed an action in
federal court against the Board of
Education of the City of Chicago, the
Superintendent of the Board, and the
Illinois State Board of Education,
claiming that the defendants had failed
to provide students with disabilities who
attended the CPS with a free appropriate
public education in the least restrictive
environment, as mandated by the IDEA,
sec.sec. 1412(a)(1) and (5). The Chicago
Board and the ISBE opposed class
certification, but the district court
disagreed and certified the Corey H.
class on February 1, 1993, at the same
time denying the defendants’ motion to
dismiss.
Four years later, on February 10, 1997,
the Corey H. plaintiffs filed a second
amended complaint, in which they alleged
that the ISBE violated the IDEA by
failing to ensure that an adequate supply
of qualified special education teachers
and related personnel was available and
properly trained. On July 29, 1997, joint
experts hired by all the parties in Corey
H. issued a report. Their report
concluded that the current certification
system for special education teachers was
in part responsible for the failures in
the education of the affected children.
That system employed eight disability
categories: learning disabilities,
social/emotional disorders, educable
mentally handicapped, trainable mentally
handicapped, physically handicapped,
blind/visually impaired, deaf/hard of
hearing, and speech/ language
handicapped. The report described this
system as "archaic" and asserted that
"the current certification system results
in categorical service delivery, limits
the way staff can be used and limits
involvement in general education. . . ."
The experts reported also that the
certification system improperly supported
the segregation of students with
disabilities according to their
disability category and unlawfully
limited the educational environment in
which they were placed.
In September 1997, the Corey H.
plaintiffs and the Chicago Board reached
a settlement, which the district court
preliminarily approved on October 23,
1997. The district court ordered the
parties to provide notice of the
settlement, and it then held a fairness
hearing on January 16, 1998. That
settlement was finally approved on that
day, and its terms are not part of the
present controversy.
What continued after that settlement was
the question of the ISBE’s liability. As
to that part of the case, the Corey H.
parties and the ISBE proceeded to trial
on October 20, 1997. See Corey H. v.
Board of Education of the City of
Chicago, 995 F. Supp. 900, 903 (N.D. Ill.
1998). On February 19, 1998, the district
court found in favor of the plaintiffs on
the liability question, holding that the
ISBE had violated the least restrictive
environment mandate of the IDEA. Id. The
court’s findings specifically singled out
the categorical system of special
education teacher certification as a
contributing factor to the violation.
Accordingly, the court ordered the ISBE
to develop rules and regulations for
teacher certification that would bring
the state into compliance with the
statute.
Rather than appealing the liability
decision, the ISBE and the plaintiff
parties entered into settlement
discussions with respect to remedies.
Their efforts bore fruit a year later,
and on March 24, 1999, the district court
preliminarily approved the proposed
settlement, and ordered notice and a
public hearing which was scheduled for
June 18, 1999. The notice was
disseminated widely throughout both
Chicago and the state; it elicited
hundreds of written comments on the
settlement. Importantly, people from
throughout the State of Illinois
responded, many with objections. Among
the responders was the Illinois Education
Association (IEA), the principal
teachers’ organization in Illinois, which
submitted a letter through its president,
Bob Haisman.
Although the Corey H. litigation
concerned only the Chicago public
schools, it was obvious that the teacher
certification issue would affect the
entire state. Illinois has long since
done away with separate teacher
certification standards for Chicago and
the rest of the state, and thus to fix
matters for Chicago inevitably meant a
change in statewide standards. See 105
ILCS 5/14-9.01 ("No person shall be
employed to teach any class or program
authorized by this Article [Children with
Disabilities] . . . unless he has had
such special training as the State Board
of Education may require."). At the start
of the hearing, in fact, the district
court advised the participants that if
they had wished to have a more formal
voice in the content of the settlement
agreement, they should have moved earlier
either to intervene or to submit a brief
amicus curiae. Nevertheless, there was
extensive testimony from interested
parties.
On the same day that the fairness
hearing was held, June 18, 1999, the
district court entered an order approving
the settlement between the Corey H.
plaintiffs and the ISBE. The settlement
agreement covered a number of topics, in
cluding monitoring procedures and
policies, pre-school services, funding
policies, and, central for present
purposes, teacher certification. Instead
of having the court draft the detailed
remedial plan, the parties agreed that
ISBE would have the primary
responsibility to develop special
education teacher certification rules, in
cooperation with the CBE and the
plaintiffs. Any such rules were subject
to the court’s retained jurisdiction to
ensure that any plan eventually adopted
was consistent with the permanent
injunction the court had already entered
against ISBE forbidding further
violations of the IDEA. See Corey H., 995
F. Supp. at 918.
The ISBE set out to do just that. Even
before the settlement agreement had been
approved, in 1998, the ISBE began working
with Illinois parents, advocates for
students with disabilities, and
educators, to revamp these teacher
certification rules. It created two
advisory panels, which conducted a dozen
public statewide hearings on the issue.
The panels also sent proposed
certification standards to numerous
outsiders, including teachers,
universities, and professional
associations, for their comments. In
October 1999, the panels submitted their
report to the ISBE, recommending that the
existing eight categories be reduced to
five. Because opinions still conflicted
so strongly on the best way to achieve
the goals of the IDEA, however, the ISBE
then convened another Blue Ribbon Task
Force, which met in February 2000 to
develop recommendations for certification
of special education teachers. That task
force suggested combining the five
categorical certificates (learning
disability, social/emotional disorder,
educable mentally handicapped, trainable
mentally handicapped, and physically
handicapped) into two new certificates--
one for Learning Behavior Specialist
Adapted Curriculum Focus, and the other
for Learning Behavior Specialist Modified
Curriculum Focus. In addition to these
two recommendations, the IEA and the
Illinois Special Education Coalition
submitted a proposal recommending
retention of the eight categorical
certificates and adding a new cross-
categorical certificate.
At this point, the ISBE realized that it
was decision time. The diversity of views
that were before it made it clear that
the Board was not likely to find a
consensus solution that made everyone
happy. In coming up with its final
proposal, it took a number of factors
into account, including the fact that
many students’ disabilities touch several
of the old categories, the need to train
teachers properly for any new system that
was implemented, the impact of any new
system on the supply of special education
teachers, the impact of any new system on
the ability of local school districts to
deliver services to disabled students,
the length of time needed to implement
any new system, and the effect of a new
system on existing teachers. The ISBE
staff accordingly developed its own
option, which contemplated one
certificate ("Learning Behavior
Specialist 1", or LBS1) for all the
former categorical certificates (learning
disability, etc., as mentioned above),
and separate certification for
specialists in teaching students who have
vision impairments, hearing impairments,
or early childhood or speech/language
disorder. This was the proposal the ISBE
submitted for the approval of the
district court.
The court had appointed a Monitor to
assist it in overseeing both the Chicago
Board’s and the ISBE’s compliance with
their respective settlement agreements.
The Monitor accordingly submitted
comments on the ISBE’s proposed
certification rules on June 22, 2000. In
those comments, the Monitor suggested
that the certification rules should be
submitted as peremptory rules to the
Joint Committee on Administrative Rules
(JCAR) in the Illinois General Assembly
(a legislative support services agency
created under Illinois law, see 5 ILCS
100/5-90). See also 5 ILCS 100/5-50
(describing peremptory rulemaking). On
September 12, 2000, the district court
accepted the Monitor’s recommendation and
ordered the ISBE to file its proposed
certification rules as peremptory rules
under the Illinois Administrative
Procedure Act. It concluded that this was
proper because these rules were "required
as a result of federal law, federal rules
and regulations, [or] an order of a
court," see 5 ILCS 100/5-50, not as a
"consent order or other court order[ ]
adopting settlements negotiated by the
agency," see id. ISBE never would have
taken action had it not been for the
court’s February 1998 decision on
liability and the remedial order that
followed.
On October 26, 2000, the ISBE published
the certification rules under its
peremptory rulemaking authority. The
rules identify specific common standards
that all special education teachers must
master, as well as standards for those
who want the LBS1 certificate. At that
point, however, a tug-of-war at the state
level emerged. In January 2001, JCAR
suspended the rules, claiming that they
constituted a serious threat to the
public interest and welfare. The district
court judge then met with the Corey H.
parties and certain members of the
Illinois General Assembly to decide what
to do. These efforts at consensus also
failed, however; on February 21, 2001,
JCAR again announced that the rules were
suspended. On February 27, 2001,
exercising the power to act independently
of the ISBE altogether that it had
reserved in both the ruling on liability
and in the settlement agreement, the
court ordered the ISBE to implement the
rules immediately without referral to
JCAR. The Illinois 92nd General Assembly
also attempted to stop the implementation
of the rules, voting to continue
indefinitely the suspension of the rules
and passing a joint resolution of both
houses on May 31, 2001.
At the same time, the court ordered the
ISBE to conduct public hearings on
another set of rules, the Rules for Tran
sition to the New Special Education
Certification Structure (transition
rules). The transition rules outlined the
procedure for teachers holding
certificates under the old system to
become requalified as holders of the LBS1
certificate. Essentially, they created a
three-year grace period for such
teachers, giving them time to acquire any
additional training they might need.
During that interim period, no Illinois
school district would be permitted to
assign a transitional teacher to teach
students outside his or her prior
categorical certificate. As ordered by
the court, the ISBE held public hearings
on the transition rules in March 2001. It
received extensive comments. As a result
of those comments, ISBE proposed
splitting the LBS1 certificate into two
(general curriculum and differentiated
curriculum), but the district court
refused to do so.
On June 28, 2001, the court ordered the
ISBE to implement the transition rules.
We now turn back to the parties who are
attempting to challenge these results
from the Corey H. case: the plaintiffs in
the Reid L. litigation (who are also the
proposed intervenors in the Corey H.
case, which allows us to refer to them
simply as the Reid L. parties). On May 7,
2000, the Reid L. parties (a group
ofspecial education teachers and students
who live outside the boundaries of the
Chicago Public School district, and are
hence nonmembers of the Corey H. class)
filed a motion to intervene in the Corey
H. litigation. Their motion alleged that
the ISBE had violated the IDEA, the 11th
and 14th Amendments to the U.S.
Constitution, and the Illinois
Administrative Procedure Act when it
promulgated both the certification rules
and the transition rules. On August 15,
2001, the district court denied the Reid
L. students’ motion to intervene; on
August 30, 2001, it denied the Reid L.
teachers’ motion to intervene. Appeal No.
01-3432 is from those orders of the
district court.
Meanwhile, on June 4, 2001, the Reid L.
parties filed a separate action for
declaratory and injunctive relief (No. 01
C 4180 in the district court). The
complaint in the injunction action
contained exactly the same allegations as
the motion to intervene. The district
court denied the Reid L. parties’ request
for a preliminary injunction and a tempo
rary restraining order on June 28, 2001;
Appeal No. 01-2707 in this court concerns
that order. We consider first the Reid L.
parties’ arguments with respect to their
motions to intervene; we then turn to
their effort to obtain injunctive relief.
II
In remarks delivered in open court, the
district court gave several reasons for
denying the motions to intervene, either
of right or permissively. First, he found
that the Reid L. parties filed their
motion too late: "the individual named
intervenors . . . knew about the case for
a long time. The case has been
extensively publicized throughout the
state. I can certainly take notice of
that, because it all came out in the
fairness hearing back in June of 1999,
more than two years ago." Timing alone,
the district court found, was "enough to
deny the motion." In that connection, the
court also noted the active role that the
IEA was playing in the Reid L. effort and
commented that had they tried to
intervene back before all the work was
done, they would have had a better
argument. The court expressed concern for
the finality of its order and found that
to allow the proposed intervention would
unravel results that had been reached
since February of 1998, the date of its
original decision on liability and its
general injunction against the ISBE. At
that early date, the court had identified
the need for cross-categorical
certification of special education
teachers in order to comply with the IDEA
and its "least restrictive environment"
mandate.
In addition to these central concerns,
the court also indicated that it did not
believe that the proposed intervenors had
shown that they had standing to sue, in
that they were asserting only a
generalized interest in a sound
educational system. Next, it stated that
the intervenors had failed to demonstrate
that their interests had not been
adequately represented by an existing
party, namely, the ISBE (which, the court
noted, had opposed the Corey H.
plaintiffs on the liability merits, and
then opposed them at the remedies stage
for a long time). Finally, the court
found that the intervenors had failed to
show that their rights or interests would
be impaired by anything in the Corey H.
settlement. Placement decisions for
students would continue to be made on a
child-by-child basis, pursuant to each
child’s individual education plan; and
teachers had no interest in refusing to
tailor their continuing educational
training to the requirements of the new
system, which ensured that no one would
be decertified.
A. Intervention of Right
There are four requirements for
intervention of right under Fed. R. Civ. P.
24(a), in the absence of a statute giving
an absolute right to intervene: (1)
timeliness, (2) an interest relating to
the subject matter of the main action,
(3) at least potential impairment of that
interest if the action is resolved
without the intervenor, and (4) lack of
adequate representation by existing
parties. See Commodity Futures Trading
Comm’n v. Heritage Capital Advisory
Servs., Ltd., 736 F.2d 384, 386 (7th Cir.
1984). The burden is on the party seeking
to intervene of right to show that all
four criteria are met. Keith v. Daley,
764 F.2d 1265, 1268 (7th Cir. 1985). If
not, then the district court must deny
intervention of right. See United States
v. 36.96 Acres of Land, 754 F.2d 855, 858
(7th Cir. 1985).
Here, the principal ground on which the
district court relied to deny the motion
is expressly recognized by the Rule:
timeliness. As it had long since entered
its decree, the court relied on People
Who Care v. Rockford Bd. of Ed., 68 F.3d
172 (7th Cir. 1995), to find that the
presumption against intervention at that
late date was sufficiently strong to
defeat the effort of the Reid L. parties
to do so. The Reid L. parties take
exception to the court’s characterization
of them as latecomers to the event. They
insist that they acted as soon as they
realized that the certification rules
were indeed going to be applied on a
state-wide basis and that the legislature
would not be able to protect their
interests. They point to February 17,
2001, as the critical date, because it
was then that the district court ruled
that the Illinois General Assembly could
not nullify its remedial order. They also
point out that the rules had not yet been
implemented at the time of their
intervention motion.
We see no flaw in the district court’s
conclusion that the Reid L. parties
waited too long before attempting to
intervene. Timeliness is fundamental not
only to intervention, but to the overall
conduct of a lawsuit, and it is a clearly
spelled out requirement of Rule 24. "The
purpose of the [timeliness] requirement
is to prevent a tardy intervenor from
derailing a lawsuit within sight of the
terminal." Sokaogon Chippewa Community v.
Babbitt, 214 F.3d 941, 949 (7th Cir.
2000) (internal quotations omitted). In
order to decide whether a motion to
intervene was timely, we look at factors
like (1) the length of time the
intervenor knew or should have known of
her interest in the case, (2) the
prejudice caused to the original parties
by the delay, (3) the prejudice to the
intervenor if the motion is denied, and
(4) any other unusual circumstances.
Ragsdale v. Turnock, 941 F.2d 501, 504
(7th Cir. 1991).
These motions were filed nine years
after the Corey H. litigation began; more
than two years after the district court’s
opinion finding the ISBE liable and
singling out the state-wide teacher
certification standards as a particular
violation of the least restrictive
environment rules; and more than ten
months after the court approved the
settlement agreement that formed the
basis for the work leading up to the
certification rules and the transition
rules. These events provided ample notice
to the Reid L. parties that their
interests might be implicated in the
ISBE’s response to the court’s orders. To
the extent that they are arguing that the
standard requires that their interests
have been impaired beyond any remedy,
they are wrong. Indeed, just as we
rejected this kind of argument in
Sokaogon Chippewa, we reject it here. See
214 F.3d at 949. The time to intervene
was, at the very latest, when the
remedial process began, ten months before
the actual motion. That was when the
rules were being drafted and publicly
discussed; that was when their input
could have been received without undoing
the long and difficult process that all
other parties to this litigation had been
pursuing in good faith. Even if we were
to consider the ten months to be the only
relevant delay, we could find no error in
the district court’s determination, as a
decision about timeliness is reviewed for
abuse of discretion. Vollmer v.
Publishers Clearing House, 248 F.3d 698,
705-06 (7th Cir. 2001). The Supreme Court
in N.A.A.C.P. v. New York, 413 U.S. 345
(1973) found that even a 17-day delay
made the motion untimely as "it was
incumbent upon the appellants, at that
stage of the proceedings, (a critical
stage) to take immediate affirmative
steps to protect their interests." 413
U.S. at 367.
The district court’s conclusion that the
other parties to the litigation would
suffer prejudice if the Reid L. parties
were entitled to intervene is also well
supported on this record. This case is
close to completion, after a decade of
litigation in the federal courts. If the
Reid L. parties were allowed to enter
now, everyone would be forced to return
to Square One, with the same old
certification rules in place, the same
old problems under the IDEA, and no
remedy in sight. The district court
correctly noted that our decision in
People Who Care strongly discourages such
eleventh-hour measures. See also United
States v. South Bend Community School
Corp., 710 F.2d 394, 396 (7th Cir. 1983).
This is true notwithstanding the fact
that the Reid L. parties will be
disadvantaged to the extent that they
will have lost the chance to urge ISBE to
implement a system more like the old one
they are losing. But any such loss is of
their own making; it is perfectly clear
that they knew about this litigation and
were content to participate on the
sidelines for a long period of time.
Theirs is not the kind of prejudice that
should weigh in favor of a long-delayed
motion for intervention. Since there are
no other unusual circumstances counseling
in favor of intervention, we conclude
that the district court was justified in
denying the motion on the ground of
untimeliness.
Even assuming that untimeliness was not
enough to bar the claim, intervention as
of right would still not be appropriate.
The Reid L. parties argue that they have
asserted the kind of substantial interest
in the new certification rules that would
justify intervention, claiming that their
interest is exactly the same as that of
the Corey H. plaintiffs themselves: an
interest in the most effective system for
teaching children with disabilities
consistent with the IDEA. At that level
of generality, of course, they are
correct. But the new element the teacher-
intervenors seek to introduce into the
case is more parochial: they wish to urge
that the new rules will force them to
change in ways that they regard as
undesirable. The non-Chicago students
among the Reid L. group wish only to
argue that a different solution to the
proven violation would have been
preferable. The teachers’ interest is far
afield from the core concerns of the
IDEA, which as we have already said are
to assure the best appropriate education
for students with disabilities in the
least restrictive environment. As for the
students, while they may have had a valid
interest while the new rules were being
drafted, now that the rules have been
embodied in a decree the picture is
different. Once the new rules are
implemented, the violation of the IDEA
should be redressed. At that point, the
Reid L. students have merely a
disagreement about pedagogical theory
with the Corey H. plaintiffs. Such a
vague concern is not enough to support
intervention of right. Thus, at either a
high or low level of generality, the Reid
L. students’ claim for intervention
fails: if it is a general interest in
Illinois’s compliance with the IDEA, that
is taken care of by all the parties in
the Corey H. litigation already; if they
are concerned only with the specifics of
the new certification rules, they have no
independent interest in the details of
their teachers’ certification, once the
remedial order brings such certification
in compliance with federal law.
We also see no independent interest the
Reid L. intervenors can assert in the
specific procedures that were used to
develop the new rules; it is plain on the
face of this record that extensive
notice, opportunity to comment, and
review were involved, and we see nothing
in the IDEA that requires more.
Next, we agree with the district court
that the Reid L. students have not shown
how their interest in the least
restrictive educational environment has
been impaired by the new rules. As the
court noted, each pupil will still be en
titled to have an individualized
education plan developed for him or her;
school districts will continue to have an
obligation to provide qualified personnel
to teach those students (or to place them
elsewhere if that cannot be done); and
students will still be able to take
advantage of the procedural protections
afforded by the statute if they or their
parents believe that the program is
falling short.
Finally, we consider whether the
district court correctly found that the
legally cognizable interests of the Reid
L. proposed intervenors were adequately
represented by the existing parties to
the case. See People Who Care, 68 F.3d at
177. Insofar as the students had an
interest in proving a violation of the
federal statute, it is clear that the
Corey H. parties represented them very
well--so much so that a major problem of
noncompliance with federal law has been
redressed. Insofar as the students had an
interest in having the court adopt an
effective remedy for that violation--
another thing that was accomplished--it
is also true that numerous points of view
were aired before ISBE and the court
settled on the final remedial measures.
The mere fact that no student from
downstate Illinois was formally entitled
to party status does not mean that the
court was unexposed to arguments about
the virtues of more categorical
certification standards, or fewer such
standards. As the district court pointed
out, for much of this litigation ISBE, a
governmental body, was opposing the Corey
H. plaintiffs in much the same way one
would have expected the Reid L. proposed
intervenors to behave. See generally
United States v. South Bend Community
School Corp., 692 F.2d 623, 625 (7th Cir.
1982); Keith v. Daley, 764 F.2d at 1270
("Adequacy can be presumed when the party
on whose behalf the applicant seeks
intervention is a governmental body or
officer charged by law with representing
the interests of the proposed
intervenor.").
But, the Reid L. parties respond, at
this point in the litigation ISBE is
trying to defend the new rules that
itauthored itself, and then allowed to
take effect over the express opposition
of the JCAR and the Illinois General
Assembly. The latter point, however, is a
red herring; the district court properly
found that the state authorities did not
have the power to override an injunctive
decree issued by a federal court to
remedy a state’s violation of standards
established by federal law. Were it
otherwise, we would risk a return to the
unlamented period when states asserted
the right to interpose their laws against
unpopular federal civil rights decrees,
see Cooper v. Aaron, 358 U.S. 1 (1958), a
period that has long been put to rest
throughout the country. A remedial order
"can neither be nullified openly and
directly by state legislators or state
executive or judicial officers, nor
nullified indirectly by them," id. at 17.
As for the former point, it is just
another way of arguing that the Reid L.
parties should be entitled to attack the
present rules in the capacity as
intervening parties to the Corey H.
litigation, even though their motion was
untimely. The problem with this argument
is its ex post perspective. The ISBE
represented their interests vigorously in
its opposition to Corey H.: its being
sensible enough to enter into a consent
decree in no way left the Reid L. parties
unrepresented, and the ISBE is entitled
to defend the rules it drafted. Everyone
must now comply with the rules the ISBE
itself has chosen to enact, under the
spur of the liability finding, until such
time as a new opportunity for public
input on revised rules arises or until
the court chooses to terminate the
decree.
B. Permissive Intervention
The court denied the motions for
permissive intervention for the same
reasons it denied the motions for
intervention of right. With respect to
permissive intervention, however, our
review is more deferential. "Reversal of
a district court’s denial of permissive
intervention is a very rare bird indeed,
so seldom seen as to be considered
unique." Shea v. Angulo, 19 F.3d 343, 346
n.2 (7th Cir. 1994). Once again, the
untimely nature of the requests, the
prejudice that the existing parties to
the case would suffer, and the
questionable nature of the legal injuries
the proposed intervenors would suffer,
all combine to demonstrate that the
district court did not abuse its
discretion in denying this part of the
motions.
III
The Reid L. parties pursued an
alternative avenue of attack on the new
teacher certification rules and the
transition system before it took effect
by filing a separate suit for declaratory
and injunctive relief. We have
jurisdiction to review the district
court’s denial of preliminary injunctive
relief. 28 U.S.C. sec. 1292(a)(1).
A party seeking to obtain a preliminary
injunction must demonstrate a likelihood
of success on the merits, a lack of an
adequate remedy at law, and a future
irreparable harm if the injunction is not
granted. See Abbott Labs. v. Mead Johnson
& Co., 971 F.2d 6, 11 (7th Cir. 1992).
Once the court is satisfied that these
three conditions have been met, it must
consider the harm that the nonmoving
party will suffer if the injunction is
granted, balancing it against the
irreparable harm to the moving party from
the denial of relief. See Storck USA,
L.P. v. Farley Candy Co., 14 F.3d 311,
314 (7th Cir. 1994). Finally, the court
must consider the interest of and harm to
nonparties from a denial or grant the
injunction. Id.
The district court explained in its
order denying the preliminary injunction
that it was doing so for several reasons:
the Reid L. parties had failed to
exercise due diligence in bringing the
motion; they lacked standing to attack
the rulings in the Corey H. case; they
were not likely to succeed on the merits
of their claims; and finally, it found
that the harms foreseeable to them if the
injunction were denied were less than the
harms that the Corey H. parties would
suffer were the injunction granted. In
reviewing the denial of a preliminary
injunction, this court adopts a
deferential stance: we review any
findings of fact the district court made
for clear error, and we review its
balancing of the considerations for or
against an injunction for abuse of
discretion. United Airlines, Inc. v.
International Ass’n of Machinist and
Aerospace Workers, AFL-CIO, 243 F.3d 349,
360 (7th Cir. 2001).
The principal substantive claim the Reid
L. parties are asserting is that the ISBE
harmed them by not conducting formal
public hearings before it implemented the
new certification rules--something they
believe can be redressed under 42 U.S.C.
sec. 1983. They find the source of the
public hearing requirement in the IDEA,
under which state agencies must conduct
such public hearings as a prerequisite
for their eligibility for federal funding
under the Act. 20 U.S.C. sec.
1412(a)(20). Not having the appropriate
hearings, they contend, is the requisite
predicate violation of federal law.
Notably, the section says nothing about
the right of either schoolchildren or
their teachers to compel anyone to hold
such hearings; it merely creates a
precondition for the state to receive
funds. Without such a right, any sec.
1983 claim is a nonstarter.
Under the Illinois Administrative
Procedure Act, there is also a
requirement for notice and an opportunity
to comment. From a technical standpoint,
it is true that the new certification
rules were promulgated without the
required notice, in apparent violation of
5 ILCS 100/5-40. But for several reasons,
the violation is only apparent. First, as
the Monitor had suggested, the rules were
promulgated under the alternative
statutory authority to issue peremptory
rules, found in 5 ILCS 100/5-50. The
rules were later suspended by the JCAR in
any event, which meant that the new rules
had been prevented from going into effect
as a matter of state law. But it was then
that the federal court stepped in and
mooted any point about compliance with
state administrative procedures. Rather
than using these procedures, the court
simply ordered on February 27, 2001, that
the rules were to go into effect. Since
the court could have simply drafted a
complete remedial decree on its own,
without any assistance at all from the
ISBE or Illinois administrative procedure
rules, we see no ground for basing a
federal lawsuit on an alleged failure to
follow state law. See, e.g., Kirkland v.
New York State Dept. of Correctional
Servs., 628 F.2d 796, 801 (2d Cir. 1980)
(once a violation of federal law is
found, the power of the district court to
fashion a remedy arises as a matter of
federal law, and nonconformance with
state law is immaterial).
Furthermore, as was noted above, there
was extensive public input into the
development of these rules, which assured
from a practical standpoint that the
purposes of notice and comment
requirements were fulfilled.
The district court also thought that the
Reid L. parties neither had standing to
sue nor a private right of action to
enforce the public hearing provisions of
the statute. We need not resolve this
issue definitively, as we are satisfied
that the court did not abuse its
discretion in denying the injunction. But
we confess to serious doubts about the
standing of the teacher-plaintiffs. It is
hard to see what legally protected
interest of theirs has been invaded and
how the invasion has injured them. No
teacher will be decertified because of
the new certification standards or the
transition rules; teachers will be able
to qualify for the new LBS1 certificate
over a three-year period, through their
ordinary continuing education process;
and in the meantime teachers may not be
forced to teach in areas for which they
are unprepared. We would have just as
little sympathy if an attorney complained
that her law license was impaired because
the state bar toughened its continuing
legal education or bar membership
requirements. See, e.g., Brown v. McGarr,
774 F.2d 777 (7th Cir. 1985). One has no
legally protectible interest in taking
easy classes rather than hard ones. Thus,
it appears that the teachers lack
standing to participate in the present
case. As for the Reid L. students, once
the Corey H. plaintiffs obtained relief
that redressed the statutory violation,
any injury they may have had has already
been redressed. It is hard to imagine any
abstract interest the students might have
in the kinds of hearings on proposed rule
changes that took place in the past that
would qualify under familiar federal
standing rules. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992).
But, as noted before, we do not need to
resolve this definitively for purposes of
ruling on a preliminary injunction
denial; it is enough to say that there is
only a small likelihood of success on the
merits on this point.
We are equally dubious about whether 20
U.S.C. sec. 1412(a)(20) confers a private
right of action on either the teachers or
the students. In the past, sec. 1415
actions have been brought only to redress
individual denials of appropriate care to
a child, not for failures to comply with
hearing and notice requirements for
broader rule-making exercises. As the
appellees note, in Alexander v. Sandoval,
532 U.S. 275 (2001), the Supreme Court
held that no implication of a private
right of action should be read into a
statute that merely sets forth
requirements that an entity must meet in
order to receive federal funds. Id. at
290. It seems that this is all that sec.
1412(a)(20) does.
When, prior to the oral argument on the
denial of intervention, the preliminary
injunction appeal was argued to this
court, the Reid L. parties also urged
that it was unfair to foreclose any
method of participation for them: if they
could not intervene (as the district
court had held by then), then they must
be able to bring an independent action;
if they could not sue separately, then
intervention must be an option. But our
reasons for rejecting intervention do not
imply that a timely motion to participate
in the case would or should have been
denied, and nothing the district court
said leads us to believe that it would
have frowned on such an effort. Rights
can be lost, and that one was. That does
not mean that the district court was
required to permit exactly the same kind
of disruption under the guise of a free-
standing action for injunctive
relief.Under the present circumstances,
the denial of both avenues is perfectly
legitimate, given that the parties did
not make the requisite showing under
either one.
To prevail on the merits of their
request for a permanent injunction, the
Reid L. parties would have to convince
the court that the remedy it has just
ordered for the IDEA violations it found
in 1998 is itself a separate violation of
the statute. The district court
reasonably evaluated as slim their
likelihood of success on that claim, even
assuming they could surmount the standing
problem. This is not because children
outside the class certified in Corey H.
are bound as parties to that outcome, on
some sort of virtual representation
theory. They are not. But the procedural
arguments based on the IDEA and state law
are weak, and as a substantive matter it
will be hard for them to show that the
remedy the court has adopted, with ISBE’s
input, is not at least one of the
solutions to the violation that was
acceptable. It need not be the only one,
or even the best one, as long as it
remedies the violation in a properly tai
lored way and respects the law otherwise,
both of which it fulfills.
IV
In No. 01-3432, we AFFIRM the orders of
the district court denying the motions to
intervene of the Reid L. parties. In No.
01-2707, we AFFIRM the district court’s
denial of the Reid L. parties’ motion for
a preliminary injunction. The district
court is free to proceed with any matters
still before it in a manner consistent
with this opinion.