When Does Government “Fairly Represent” Public Interest Groups’ Views, Thus Barring Them from Intervening?

My favorite saying is that the true power of a lawyer is his ability to make every question about procedure a question about law. It’s not a bad thing. A sound procedural rule is crucial for a proper and efficient determination on the substance. Even though they are not essential, unsound procedural rules can be detrimental to the decision-making process.

One particularly important procedural rule has to do with when parties, including public interest groups, can intervene in a case—and, in particular, when they can intervene when a government party is saying “no need, we’ve got this” and the groups are saying “no you don’t.” The issue was most prominently raised by the Foundation for Individual Rights in Education, which attempted to present important constitutional arguments in Title IX cases. However, the topic is also relevant. FIRE explains it in this cert. Sign up FIRE v. Victim Rights Law CenterThe Court will consider this Friday

Federal Rule of Civil Procedure 24-a(2) states that any entity that wants to intervene in a case must show that the other parties are not “adequately representing” their interests. The First Circuit, along with several other appeals courts, assumes that the government will properly represent any intervenor in cases where someone is seeking to intervene for a government entity. This presumption cannot be overturned by “strong affirmative evidence” that the government is not representing applicants’ interests.

However, in these cases the presumption is not applied by four Circuits. See, e.g., Crossroads Grassroots Pol’y Strategies v. FEC, 788 F.3d 312, 321 (D.C. Cir. 2015). The First Circuit relied heavily on the presumption that was present in the proceeding below and ruled that petitioners couldn’t intervene as of rights to support a Department of Education Rule on Title IX, which none of the other parties would agree to.

This question is to determine whether an intervening movant must prove that he or she can act as a legal representative on the same side of a litigant.

The [First Circuit’s]Presumption conflict with Trbovich V. United Mine Workers of Am.The 1972 case 404 U.S.528 held that the movant who wanted to intervene as a governmental litigant on the same side had only a “minimal obligation” to show inadequacy. This presumption is also not supported by Rule 24(a),(2). It uses conditional language that suggests that, in cases where a movant has the right to intervene, it is unlikely for intervention to be denied if another party’s representation proves inadequate.

Finaly, the presumption hides the disconnect between the wide public interest represented by a government agency when litigating a law/legislative rule and the more narrow interests represented private litigants who could be adversely affected if that rule or law were invalidated. As a result of the presumption, parties who otherwise qualify to intervene are left out of cases that threaten to impair or impede their interests—even when they can show that the existing parties’ interests are different than their own.

This case is a good example of how crucial it is to have a circuit split on Rule 24 (a)(2). These advocacy groups are committed to the promotion of free speech on college campuses and due process. They sought to intervene on the side of the Department to defend the culmination of a years-long rulemaking process—a key regulation mandating the most significant changes to administrative proceedings under Title IX in the history of that important statute.

The First Circuit ruled that Petitioners represented narrow interests which were inconsistent with the larger Department interests and denied their request to intervene. Because Petitioners did not have the opportunity to present their constitutional defenses of Title IX Rule, the Department refused to, and they are in conflict with its interests.

In contrast, in essentially identical litigation relying on essentially identical arguments in the United States District Court for the District of Columbia—where the presumption does not apply— Petitioners were allowed to permissively intervene alongside the Department. They also have a motion in progress to intervene in a case challenging the Northern District Rule of California. That means they’ll have to be considered for the final decision. All three The courts of appeal take different approaches to ensure that representation is adequate.

The petitioners aren’t the only ones. Presumption can be used to block other interested parties from joining litigation on important matters. This undermines the general rule that intervention is preferred in courts that use it. This case is an important one and the Court should give the writ to this Court to guide the lower courts in a matter that can affect a large number of important cases.

You can find more details about the question, although part of this is a procedural question. Sometimes it can feel as though it is procedure all the down.

Title IX bans schools that are eligible for federal financial aid from making discriminatory sex claims. Because nearly every college and university in America receives federal funds, Title IX’s application by the Department is of great importance to higher education.

On May 19, 2020, the Department published its Rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance … to take effect on August 14, 2020. The Rule was the culmination of a comprehensive regulatory process during which the Department considered over 124,000 comments, hearing from those who had been victims of sexual assault and sexual harassment, those who had been accused, and thousands of others—schools, universities, educators, social workers, nonprofit groups, and concerned citizens. This administrative process was actively participated in by petitioners.

Final Rule uses a discriminatory definition of “sexual harassment”, which closely matches this Court’s. Davis v. County Board of Education, 526 U.S. 629 (1999). Final Rule includes “sexual harassment”.[u]Unwelcome behavior is conduct that a reasonable person considers to be so serious, pervasive and offensive as to effectively prevent a person from having equal access to the recipient’s educational program or activity. In DavisThe Court held similarly that Title IX sexual harassment should be considered “actionable”.

Adoption by the Department of DavisThe agency made a significant change in its direction with the adoption of standard. Prior to the publication of its informal guidance, Department adopted an expanded definition for discriminatory sexual harassment. This included conduct that was “sufficiently serious, persistent, and pervasive” so students could not participate or benefit from any education program, activity, or to create hostile or abusive environments in schools. This definition was different from the former. DavisDisjunctive listing of the characteristics of discriminatory harassment is standard. The “objectively offending” criteria is ignored and the term “persistent” is introduced.

The Rule provides procedural protections to those who are accused of sexual misconduct, in a departure from previous informal guidance. Schools must, for example, provide notices to respondent in sexual misconduct cases; (2) assign neutral, impartial adjudicators; (3) consider exculpatory and inculpatory evidence objectively; and, (4) allow respondents and complainants the same opportunities to gather evidence, select advisors and appeal. In addition, postsecondary institutions must guarantee the accused a live hearing with the opportunity for cross-examination….

As soon as the rule was made public, there were court challenges. The plaintiffs brought suit against the U.S. District Court for Massachusetts in this instance, as it was subject to 28 U.S.C. § 1331. The Rule uses the Plaintiffs’ allegations. DavisThe standard for defining “sexual harassment”, and any additional protections provided to the accused under Title IX of the Administrative Procedure Act and the Fifth Amendment’s equal protected guarantee, are illegal. The plaintiffs are seeking a court order to compel Department to remove the alleged sexual harassment. Davis standard with a more elastic definition of discriminatory sexual harassment—any “unwelcome conduct of a sexual nature.” Soon after the plaintiffs had filed an amended complaint, petitioners moved to intervene and became defendants.

Petitioners moved to intervene to protect their interests and to advance a legal theory that the Department of Education will not: that many of the Rule’s protections for college students are not just reasonable policy decisions—they are constitutionally required. As parties, Petitioners argued that any definitions of sexual harassment should be more broad than those in the Rules. Davis standard would unconstitutionally infringe on First Amendment-protected speech—both directly and through its inevitable chilling effect. Petitioners further argued that Due Process Clause alone requires public universities and colleges to provide the same procedural protections required by the Rule.

This is not the position taken by Department. According to the Preamble of the Rule, the Department stated that it was not necessary to apply the DavisStandard was in accordance with the First Amendment, but not mandated by it. The Department claims that the Rule’s procedural defenses are likely to meet constitutional due processes obligations, and were “inspire by principles due process,” however they do not have to be required under the Constitution. In line with these statements, the Department refused to defend the Rule in constitutional court proceedings.

Petitioners are also not in conflict with the Department. Petitioners represent nonprofit organizations that advocate for the narrow definition of sexual harassment under. Davis protect free speech and due process rights at college and university campuses. Their interests are in the best possible protection of these rights.

However, the Department of Justice is a federal government agency and subject to all sorts of political and legal forces. Every action taken by the Department has to balance many interests. The Department, for example, noted in Rule’s preamble that it sought to balance protection against sexual harassment and protection of freedom speech and expression. …

Both the process and the substance are crucial issues.