Category: Cases, Due Process, Litigation
Current Status: On July 19, FIRE, IWLC, and Speech First asked the Supreme Court to review the First Circuit’s decision affirming denial of their motion to intervene. On November 15, 2021, FIRE submitted its reply brief to the two briefs in opposition filed by Victim Rights Law Center and the Federal Respondents. The petition and briefing will be distributed for the December 3, 2021 conference.
On June 10, 2020, four organizations that represent student survivors of sexual harassment and assault challenged the Department of Education’s Title IX regulations in the U.S. District Court for the District of Massachusetts.
FIRE, joined by Independent Women’s Law Center and Speech First, moved to intervene as defendants on July 21, 2020. After the district court denied their motion on July 27, 2020, in a summary order, FIRE, IWLC, and Speech First appealed to the U.S. Court of Appeals for the First Circuit. On February 18, 2021, the First Circuit affirmed the district court’s order denying the motion to intervene as defendants.
On July 19, FIRE, IWLC, and Speech First asked the Supreme Court to review the First Circuit’s decision affirming denial of the motion to intervene. This case presents a particularly stark example of a well-developed circuit split over a question of significant importance. Under Federal Rule of Civil Procedure 24(a)(2), an individual or organization seeking to intervene as of right must establish that none of the existing parties “adequately represent” its interests. In cases where the individual or organization seeks to intervene on the side of a governmental entity, the First Circuit and several other courts of appeal presume that the government will adequately represent those interests. By contrast, four federal circuit courts of appeal do not put a thumb on the scale in favor of the government.
The petition asks the Supreme Court to review this case to resolve the circuit split, arguing that the presumption conflicts with Supreme Court precedent holding that a prospective party who sought to intervene on the same side as a governmental litigant had only a “minimal burden” to establish inadequacy of representation. The petition also argues that the presumption lacks support in the text of Rule 24. If the federal government won’t defend its own laws, then citizens should have the opportunity to intervene and do so themselves.
In the proceedings below, after holding a bench trial on November 18, 2020, the district court upheld the challenged 2020 Title IX regulation, except for one provision prohibiting statements not subject to cross-examination.
Four organizations — Institute for Justice, Alliance Defending Freedom, Liberty Justice Center, and Mountain States Legal Foundation — filed amicus briefs in support of FIRE’s petition. Although the parties waived their right to respond to the cert petition, on September 1, 2021, the Supreme Court called for a response by October 1, 2021. On September 7, 2021, the Court extended this deadline to November 1, 2021.