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Free Speech

When Does Government "Fairly Represent" Public Interest Groups' Views, Thus Barring Them from Intervening?

An important and interesting question, arising here as to Title IX, free speech, and due process, but relevant more generally as well (and now pending before the Supreme Court).


As I like to say, the lawyer's true superpower is to turn every question into a question about procedure. But there's a good reason for that: Sound procedural rules are critical to a just and efficient decision on the substance. (Unsound procedural rules, of course, are also important, though in a bad way.)

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." This has come up most recently with the Foundation for Individual Rights in Education's attempt to make important constitutional arguments in a Title IX case, but the issue comes up more broadly. Here's how FIRE puts it in its cert. petition in FIRE v. Victim Rights Law Center, which the Court is scheduled to consider Friday:

Under Federal Rule of Civil Procedure 24(a)(2), an entity that seeks to intervene as of right must establish that none of the existing parties "adequately represent" its interests. In cases in which someone seeks to intervene on the side of a governmental entity, the First Circuit and several other courts of appeals apply a presumption that the government will adequately represent the proposed intervenor. The presumption can only be overcome by "a strong affirmative showing" that the government "is not fairly representing the applicants' interests."

In contrast, four Circuits do not apply a presumption in such cases. See, e.g., Crossroads Grassroots Pol'y Strategies v. FEC, 788 F.3d 312, 321 (D.C. Cir. 2015). Relying heavily on the presumption in the proceedings below, the First Circuit ruled that Petitioners could not intervene as of right to advance constitutional arguments in support of an important Department of Education rule on Title IX that none of the existing parties are willing to make.

The question presented is whether a movant who seeks to intervene as of right on the same side as a governmental litigant must overcome a presumption of adequate representation.

The [First Circuit's] presumption conflicts with Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972), which held that a movant who sought to intervene on the same side as a governmental litigant had only a "minimal burden" to establish inadequacy of representation. The presumption likewise lacks support in the text of Rule 24(a)(2), which employs conditional language suggesting that, where a movant is otherwise qualified to intervene, the question whether another party's representation is "adequate" should rarely tip the scales against intervention.

Finally, the presumption obscures the frequent disconnect between the broad public interests represented by a government agency in litigation defending a law or legislative rule and the narrower interests represented by private litigants who would be adversely affected by invalidating that law or rule. 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 illustrates the particular importance of the circuit split over the application of Rule 24(a)(2). Petitioners are advocacy groups devoted to promoting free speech and due process on college campuses. 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.

Even though Petitioners represent comparatively narrow interests that are inconsistent with the broader interests of the Department, the First Circuit presumed the Department would adequately represent Petitioners and affirmed the denial of their motion to intervene. As a result, Petitioners were denied the ability to raise their proposed constitutional defenses of the Department's Title IX Rule despite the fact that the Department refuses to raise those defenses, which conflict with the Department's own interests in the litigation.

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. And Petitioners have a pending motion to intervene in another case challenging the Rule in the Northern District of California, which means that when all is said and done they will have been subjected to all three approaches that the courts of appeals take to adequacy of representation.

Petitioners are hardly alone. In the courts that apply the presumption, it often prevents similarly interested parties from participating in litigation over important issues and undercuts the general principle that intervention is favored. The Court should grant the writ in this case to provide much-needed guidance to the lower courts on a question that affects a wide variety of important cases.

Here's more on the substantive question involved, though part of it is itself a substantive question about procedure. (Sometimes it feels like it's procedure all the way down.)

Title IX prohibits education programs that receive federal financial assistance from discriminating on the basis of sex. Since nearly all colleges and universities in the United States receive federal funds, the interpretation and application of Title IX by the Department has sweeping importance for 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. Petitioners were active participants in this administrative process.

The final Rule uses a definition of discriminatory "sexual harassment" that closely tracks this Court's definition of that term in Davis v. County Board of Education, 526 U.S. 629 (1999). The final Rule defines "sexual harassment" to include "[u]nwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity." In Davis, this Court similarly held that "actionable" sexual harassment under Title IX must be "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school."

The Department's adoption of the Davis standard was an important change of course for the agency. In its prior informal guidance, the Department had embraced a more expansive definition of discriminatory sexual harassment, defining it as conduct "sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment." The former definition departed from the Davis standard by disjunctively listing the attributes of discriminatory harassment, ignoring the "objectively offensive" criterion, introducing the term "persistent," and eschewing terms like "denial" or "deprivation" in favor of more amorphous terms like "limit."

In another departure from the Department's prior informal guidance, the Rule sets out a number of procedural protections for those accused of sexual misconduct. For instance, the Rule mandates that schools: (1) provide timely notice to respondents in sexual misconduct proceedings; (2) employ neutral, unbiased adjudicators; (3) objectively consider inculpatory and exculpatory evidence; and (4) afford complainants and respondents equal opportunities to gather and present evidence, to select advisors, and to appeal. In addition, postsecondary institutions must guarantee the accused a live hearing with the opportunity for cross-examination….

The Rule faced court challenges almost as soon as it was announced. In this case, plaintiffs sued in the U.S. District Court for Massachusetts, which had jurisdiction under 28 U.S.C. § 1331. Plaintiffs allege that the Rule's use of the Davis standard to define "sexual harassment" and its additional procedural protections for the accused are unlawful under Title IX, the Administrative Procedure Act, and the Fifth Amendment's equal protection guarantee. Among other relief, plaintiffs seek a court order that would compel the Department to replace the Davis standard with a more elastic definition of discriminatory sexual harassment—any "unwelcome conduct of a sexual nature." Shortly after plaintiffs filed their amended complaint, Petitioners filed a motion to intervene as 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. Petitioners maintain and sought to argue as parties below that any definition of "sexual harassment" more expansive than the Davis standard would unconstitutionally infringe on First Amendment-protected speech—both directly and through its inevitable chilling effect. Further, Petitioners sought to argue that the Due Process Clause independently requires public colleges and universities to provide many of the same procedural protections now mandated by the Rule.

The Department has declined to take these legal positions. In the Rule's Preamble, the Department maintained that applying the Davis standard was "consistent with the First Amendment," not required by it. And the Department maintains that the Rule's procedural protections "likely will meet constitutional due process obligations" and are "inspired by principles of due process," but nevertheless are not required by constitutional due process. Consistent with those statements, throughout the litigation over the Rule, the Department has refused to defend the Rule on constitutional grounds.

Moreover, Petitioners' interests are not coextensive with those of the Department. Petitioners are nonprofits that consistently advocate for narrowly defining "sexual harassment" under Davis to safeguard free expression and due process rights on college and university campuses. Thus, their interests lie in securing the greatest possible protection for those rights.

By contrast, the Department is a federal agency subject to all manner of legal and political forces. The Department thus must balance a host of interests with every action it takes. For instance, the Department noted one such balancing act in the Rule's preamble by saying it explicitly sought to "balance protection from sexual harassment with protection of freedom of speech and expression." …

Hugely important issues, both on the procedure and the substance.