Amicus Curiae Brief — Foundation for Individual Rights in Education, et al., Petitioners v. Victim Rights Law Center, et al.

Supreme Court briefAug 20, 2021

Ask Donna

What actually matters in this document.

Text

No. 21-84

In the

Supreme Court of the United States

♦

FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION,

ET AL.,

Petitioners,

VICTIM RIGHTS LAW CENTER, ET AL.,

Respondents.

♦

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

♦

BRIEF OF AMICUS CURIAE

MOUNTAIN STATES LEGAL FOUNDATION IN

SUPPORT OF FOUNDATION FOR INDIVIDUAL

RIGHTS IN EDUCATION, ET AL.’S PETITION FOR

WRIT OF CERTIORARI

♦

Cristen Wohlgemuth

Counsel of Record

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

cristen@mslegal.org

August 20, 2021

Attorney for Amicus Curiae

QUESTION PRESENTED

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.” Pet.

App. 8a. 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.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ................................

TABLE OF AUTHORITIES ..............................

IDENTITY AND INTEREST

OF AMICUS CURIAE .......................................

SUMMARY OF THE ARGUMENT ..................

ARGUMENT ......................................................

The Court’s Presumption that the

Department of Justice will Adequately

Defend the Regulations is in Tension

With President Biden Instructing the

Department of Education to Consider

Suspending Them ....................................

II.

III.

IV.

Biden’s Nomination of Catherine

Lhamon to be Assistant Secretary for

Civil Rights Demonstrates Continued

Hostility to the Title IX Regulations. .....

The District Court Erred in its

Opinion Setting Aside One Part of the

Title IX Regulations ................................

Petitioners Must Be Able to Intervene

In Order to Appeal the District Court’s

Ruling ......................................................

iii

Even if the Department of Education

Planned to Appeal the District Court

Order, Congress May Stop Them. ..........

CONCLUSION ...................................................

TABLE OF AUTHORITIES

CASES

PAGE(S)

Adarand Constructors v. Pena,

515 U.S. 200 (1995) ................................

Crossroads Grassroots Pol’y Strategies v.

FEC,

788 F.3d 312 (D.C. Cir. 2015) ................

Didrickson v. U.S. Dept. of Interior,

982 F.2d 1332 (9th Cir. 1992) ................

Idaho Farm Bureau Federation v. Babbitt,

58 F.3d 1392 (9th Cir. 1995) ..................

National Wildlife Federation v. Lujan,

928 F.2d 453 (D.C. Cir. 1991) ................

Stringfellow v. Concerned Neighbors in

Action,

480 U.S. 370 (1987) ................................

United States v. Yale University,

337 F.R.D. 35 (D. Conn., Jan. 19,

2021) ......................................................

United States v. Yale, 3:20-cv-01534-CSH

(D. Conn., Feb. 3, 2021) .........................

Victim Rights Law Center v. Cardona,

--- F.Supp.3d ---, 2021 WL 3185743 (D.

Mass., Jul. 28, 2021) .............................

Victim Rights Law Center v. Rosenfelt,

988 F.3d 556 (1st Cir. 2021) .................

Victim Rights Law Center v. Cardona,

2021 WL 2649157 (D. Mass., Apr. 20,

2021) .......................................................

Western Watersheds Project v.

Kraayenbrink,

632 F.3d 472 (9th Cir. 2011) ..................

25, 26

RULES

Fed. R. Civ. P. 24(a)(2) ...................................

Supreme Court Rule 37.2(a) ..........................

Supreme Court Rule 37.6 ..............................

STATUTES

5 U.S.C. § 553 .................................................

5 U.S.C. § 706(2)(A)........................................

20 U.S.C. § 1682 .............................................

2, 3

REGULATIONS

34 C.F.R. § 106.6(h)........................................

34 C.F.R. § 106.30(a). .....................................

34 C.F.R. § 106.45(b) ......................................

34 C.F.R. § 106.45(b)(1)(v) .............................

34 C.F.R. § 106.45(b)(6)(i) .............................. Passim

Notice of Proposed Rulemaking (NPRM)

Dept. of Ed. Nondiscrimination on the

Basis of Sex in Education Programs or

Activities Receiving Federal Financial

Assistance, 83 FR 61462

(Nov. 29, 2018) .......................................

NPRM, 83 FR 61498 ......................................

Dept. of Ed., Nondiscrimination on the

Basis of Sex in Education Programs or

Activities Receiving Federal Financial

Assistance (Final Rule), 85 FR 30026

(May 19, 2020)........................................

9, 27

Final Rule, 85 FR 30344 ................................

18, 20

Final Rule, 85 FR 30345 ................................

20, 24

Final Rule, 85 FR 30346 ................................

Final Rule, 85 FR 30349 ................................

OTHER AUTHORITIES

Executive Order 14,021 .................................

8, 9

Bianca Quilantan, Biden vows ‘quick end’

to DeVos’ sexual misconduct rule:

Biden disavowed Education Secretary

Betsy DeVos’ Title IX rule, Politico

(May 7, 2020)..........................................

vii

C-SPAN, Education Secretary DeVos on

Title IX (Sept. 7, 2017) ...........................

3, 9

Department of Education Office for Civil

Rights OPEN Center Technical

Assistance Repository, CrossExamination, at 5, 8-9

(January 2021) .......................................

Education Writers Association Webinar,

Biden Policy Director Talks

Education, and Fields Questions,

October 22, 2020 ....................................

H.R. 4502, June 29, 2021 ...............................

Hearing Nominations of Catherine Lhamon

to be Assistant Secretary for Civil

Rights at the Department of

Education, Elizabeth Brown to be

General Counsel of the Department of

Education, and Roberto Rodriguez to

be Assistant Secretary for Planning,

Evaluation, and Policy Development

of the Department of Education,

Senate HELP Committee,

July 13, 2021 ..........................................

Jonathan Easley, Biden says he'll reverse

DeVos rule bolstering protections for

those accused of campus sexual

assault, The Hill (May 6, 2020) .............

3, 4

viii

Robin Wilson, How a 20-Page Letter

Changed the Way Higher Education

Handles Sexual Assault, The

Chronicle of Higher Education

(Feb. 7, 2017) ..........................................

Samuel Kim, Biden’s civil rights nominee

remains unapologetically divisive on

Title IX, Yahoo News,

July 14, 2021 ..........................................

Statement by Vice President Joe Biden on

the Trump Administration Rule to

Undermine Title IX and Campus

Safety (May 6, 2020). .............................

The White House, President Biden

Announces His Intent to Nominate

Catherine Lhamon for Assistant

Secretary for Civil Rights at the

Department of Education (May 13,

2021) .......................................................

Tyler Kingkade, Biden wants to scrap Betsy

DeVos’ rules on sexual assault in

schools. It won't be easy., NBC News,

(Nov. 12, 2020) .......................................

Tyler Kingkade, Biden will nominate

Catherine Lhamon to lead Education

Department’s civil rights office, NBC

News (May 13, 2021) .............................

U.S. Senate HELP Committee Questions

for the Record for Catherine Lhamon,

Nominee to be Assistant Secretary for

Civil Rights, Department of Education

(Jul. 14, 2021).........................................

14, 15

Zhonette Brown, Biden’s Activist Recruits

Raise Risk of ‘Sue and Settle’

Collusion, National Review Online

(Feb. 7, 2021) ..........................................

IDENTITY AND INTEREST OF

AMICUS CURIAE 1

MSLF is a nonprofit, public-interest law firm

organized under the laws of the state of Colorado.

MSLF is dedicated to bringing before the courts issues

vital to the defense and preservation of individual

liberties, the right to own and use property, the free

enterprise system, and limited and ethical

government. Since its creation in 1977, MSLF

attorneys have been active in litigation regarding the

proper interpretation and application of statutory,

regulatory, and constitutional provisions. See, e.g.,

Adarand Constructors v. Pena, 515 U.S. 200 (1995)

(MSLF serving as lead counsel).

MSLF also

frequently represents clients who intervene in federal

litigation, often on the side of valid and appropriate

federal deregulatory conduct. In order to secure these

interests, MSLF files this amicus brief urging the

Court to grant the Petition.

♦

1 The parties were timely notified and have consented to the

filing of this amici curiae brief. See Sup. Ct. R. 37.2(a). Pursuant

to Supreme Court Rule 37.6, the undersigned affirms that no

counsel for a party authored this brief in whole or in part, and no

person or entity other than amici curiae or their counsel, made a

monetary contribution specifically for the preparation or

submission of this brief.

SUMMARY OF THE ARGUMENT

The lawyers working in the Department of

Justice’s Federal Programs division are some of the

best in the country. They are capable of defending a

wide array of federal statutes and regulations

promulgated by executive branch agencies, like the

Department of Education.

Nevertheless, it is

inaccurate to suggest that the political appointees

who direct and control the decisions made at executive

branch agencies—not just at the Department of

Justice, but also at higher levels of the Executive

Branch—will presumptively support the vigorous

defense of the policy enactments of prior

administrations. That is particularly true where, like

here, a presidential administration changes in the

middle of litigation.

This Court should grant

certiorari to ensure that applicants for intervention

are not denied an opportunity to intervene based on

such a presumption.

ARGUMENT

As the Petitioner notes, on May 6, 2020, the

Department of Education announced that it was

promulgating final regulations under 20 U.S.C. §

1682, more commonly known as Title IX of the

Education Amendments of 1972 (Title IX). (“Each

Federal department and agency which is empowered

to extend Federal financial assistance to any

education program or activity, by way of grant, loan,

or contract other than a contract of insurance or

guaranty, is authorized and directed to effectuate the

provisions of section 1681 of this title with respect to

such program or activity by issuing rules, regulations,

or orders of general applicability which shall be

consistent with achievement of the objectives of the

statute authorizing the financial assistance in

connection with which the action is taken.”).

The regulations were the first of their kind.

Never before had the Department enshrined

protections against sexual harassment for students,

staff, and others into federal regulations. Instead, the

Department had pursued a course of issuing guidance

documents, which are not subject to the normal notice

and comment process under the Administrative

Procedures Act. See 5 U.S.C. § 553. Without a doubt,

it was one of the signature accomplishments of

Secretary DeVos’s Department of Education during

the Trump Administration.

This process, moreover, was set against the

backdrop of a September 2017 speech given by then

Secretary DeVos, in which she announced that the

Department was undertaking significant reforms on

Title IX. 2 Part of these reforms involved rescinding

old Dear Colleague Letters issued during the ObamaBiden Administration.

Unsurprisingly, thencandidate Biden reacted negatively to the Title IX

regulations that were promulgated as a culmination

of these reforms.

“’It’s wrong,’ Biden said. ‘And, it will be put to a

quick end in January 2021.’” Jonathan Easley, Biden

2 See C-SPAN, Education Secretary DeVos on Title IX (Sept. 7,

2017),

https://www.c-span.org/video/?433696-1/educationsecretary-lady-justice-blind-campuses-today

says he'll reverse DeVos rule bolstering protections for

those accused of campus sexual assault, The Hill (May

6, 2020). 3 Biden’s criticisms were put in dire tones.

See id. (“Biden said the DeVos rule ‘gives colleges a

green light to ignore sexual violence’ on campuses and

would ‘strip survivors of their rights.’”). In short,

there was no question that Biden viewed the

regulations as contrary to his policy preferences.

Biden’s intent was unmistakable: if he were

elected President, the new regulations would not

survive his term. Indeed, by suggesting that they

would face a “quick end in January 2021,” Biden

indicated that the Title IX regulations might not even

survive the first 11 days of his presidency—between

January 20 and January 31, 2021.

Nevertheless, in a lawsuit filed by the Victim

Rights Center, which sought to have many of the new

regulations invalidated, the First Circuit held on

February 18, 2021, that Petitioners were not entitled

to intervention as of right, on the basis that “this court

and a number of others start with a rebuttable

presumption that the government will defend

adequately its action.” Victim Rights Law Center v.

Rosenfelt, 988 F.3d 556, 561 (1st Cir. 2021).

Not only should the government not be entitled

to such a presumption, but affording such a

presumption is subject to doctrinal and timing

difficulties, given that an intervenor may be able to

3 https://thehill.com/homenews/campaign/496518-biden-says-

hell-reverse-devos-rule-to-bolster-protections-for-those-accused.

rebut (or not rebut) the presumption of adequate

defense at different points during the litigation. 4

This Court should thus grant certiorari to clarify

the appropriate legal standard for intervention.

The Court’s Presumption that the

Department of Justice will Adequately

Defend the Regulations is in Tension With

President

Biden

Instructing

the

Department of Education to Consider

Suspending Them.

President Biden has been outspoken on the topic

of sexual harassment. See Bianca Quilantan, Biden

vows ‘quick end’ to DeVos’ sexual misconduct rule:

Biden disavowed Education Secretary Betsy DeVos’

Title IX rule, Politico (May 7, 2020) (““Before Tara

Reade’s assault accusations, Biden was unwavering in

a presumption of guilt for the accused including Brett

Kavanaugh,” said Erin Perrine, the Trump

Campaign’s principal deputy communications

director, in response to Biden's statement.”). 5

See, e.g., State of Texas Memorandum in Support of

Intervention, Victim Rights Law Center v. Cardona, 2021 WL

2649157 (Apr. 20, 2021), which argued that Texas ought to be

able to intervene now that President Biden has taken office.

(“[W]hereas FIRE was concerned that the Department would

employ different arguments in defense of the Final Rule, Texas

has shown that the Department under the Biden Administration

has reason to cease defending the Final Rule altogether.”)

(internal citation omitted).

5 https://www.politico.com/news/2020/05/06/biden-vows-a-quickend-to-devos-sexual-misconduct-rule-241715

Long before May 6, 2020, Biden tweeted

opposition to the effort to undo his prior work on Title

IX, based on the publication of the unofficial copy of

the Notice of Proposed Rulemaking issued by the

Department in November 2018. 6

Joe Biden (@JoeBiden), Twitter (Nov. 16, 2018, 2:18

PM). 7

6 Dept. of Ed, Nondiscrimination on the Basis of Sex in Education

Programs or Activities Receiving Federal Financial Assistance,

Notice of Proposed Rulemaking (NPRM), 83 Fed. Reg. 61462,

Nov. 29, 2018. The unofficial copy of the NPRM, which was

submitted to the Federal Register on November 16, 2018, is

available at https://www2.ed.gov/about/offices/list/ocr/docs/titleix-nprm.pdf

7 https://twitter.com/joebiden/status/

1063541867910963201.

And after the formal issuance of the Title IX

regulations, Biden stated unequivocally that the

regulations were harmful to survivors of sexual

harassment, and affirmatively based on animus

toward survivors and parents generally. See id.

(“Biden said … ‘Betsy DeVos — is trying to shame and

silence survivors, and take away parents’ peace of

mind.’”). His campaign incorporated criticism of the

Title IX regulations into its talking points. Education

Writers Association Webinar, Biden Policy Director

Talks Education, and Fields Questions (Oct. 22, 2020),

at 3:35 (Video remarks of Stef Feldman, policy

director, Biden for President campaign) (“Biden will

ensure our schools are safe places for all children,

instead of ripping away protections for sexual assault

survivors in our schools.”). 8

Biden’s objections were not just policy-based.

They were also legal. He contended that: “This [Title

IX] rule fundamentally disregards student’s civil

rights under Title IX.” Statement by Vice President

Joe Biden on the Trump Administration Rule to

Undermine Title IX and Campus Safety (May 6,

2020). 9 Put simply, the Biden Administration’s

position publicly was that the regulations conflicted

with Title IX.

Biden’s objections to the new Title IX regulations

also cited the fact that he famously had been a part of

8 https://www.ewa.org/webinar/biden-policy-director-talks-

education-and-fields-questions

9 https://medium.com/@JoeBiden/statement-by-vice-president-

joe-biden-on-the-trump-administration-rule-to-undermine-titleix-and-e5dbc545daa

the Obama Administration’s efforts to issue “Dear

Colleague Letters” to schools explaining their

obligations under Title IX. See id. (“During the

Obama-Biden Administration, I traveled to the

University of New Hampshire … to announce that

colleges would have new guidance and support from

our Administration on how best to prevent and

respond to campus sexual assault”); see also Robin

Wilson, How a 20-Page Letter Changed the Way

Higher Education Handles Sexual Assault, The

Chronicle of Higher Education (Feb. 7, 2017) (“The

centerpiece of Mr. Biden’s announcement, a 20-page

letter released by the U.S. Education Department’s

Office for Civil Rights, has since become legendary.”) 10

It was no surprise, then, that President Biden

issued Executive Order 14,021 on March 8, 2021,

which stated:

(iii) The Secretary of Education shall

consider

suspending,

revising,

rescinding—or publishing for notice and

comment proposed rules suspending,

revising, or rescinding—those agency

actions that are inconsistent with the policy

set forth in section 1 of this order as soon as

practicable and as appropriate and

consistent with applicable law, and may

issue such requests for information as would

facilitate doing so.

10 https://www.chronicle.com/article/how-a-20-page-letter-

changed-the-way-higher-education-handles-sexual-assault/

Exec. Order 14,021, § 2(iii), 86 Fed. Reg. 13803 (Mar.8,

2021). Although the Executive Order did not clarify

how the Department might go about suspending

federal regulations, the intent was clear:

the

President wanted the Title IX regulations to be swiftly

rescinded or changed.

Of course, attending to the normal regulatory

process under the Administrative Procedures Act is

long and painstaking. Indeed, it took the Trump

Administration over two years between thenSecretary

DeVos’s

September

2017

speech

announcing the project to enshrine protections

against sexual harassment into law, and May 2020,

when the regulations were finally issued. 11

Even then, a new set of Title IX regulations

would be subject to a new set of legal challenges,

which could of course themselves extend beyond

President Biden’s term. As NBC News observed,

“[t]he lawsuits [against the Title IX regulations] offer

one potential shortcut to get rid of the regulations.”

Tyler Kingkade, Biden wants to scrap Betsy DeVos’

rules on sexual assault in schools. It won't be easy.,

NBC News (Nov. 12, 2020) 12; see id. (“Because

litigation over the Title IX regulations will likely

continue into the spring, the Biden administration

Compare C-SPAN, Education Secretary DeVos on Title IX

(Sept.

2017)

https://www.c-span.org/video/?4336961/education-secretary-lady-justice-blind-campuses-today

with

Dept. of Ed., Nondiscrimination on the Basis of Sex in Education

Programs or Activities Receiving Federal Financial Assistance,

85 Fed. Reg. 30026 (May 19, 2020) (“Final Rule”).

12 https://www.nbcnews.com/politics/2020-election/biden-wantsscrap-betsy-devos-rules-sexual-assault-schools-it-n1247472

could agree to put the rule on hold, effectively killing

it.”).

Indeed, the Biden Administration has

dismissed other civil rights actions after a district

court denied intervention, based on the overlapping

interests between the party trying to intervene and

the federal government. See United States v. Yale

University, 337 F.R.D. 35, *41 (D. Conn., Jan. 19,

2021) (“SFFA fails to rebut the presumption of

adequate representation of its interest by the

government.”); see id. at *41 (“That presumption

arises because the governments complaint and

SFFA’s proposed intervenors complaint share an

‘identity of interest’ and seek ‘the same ultimate

objective.’”); see also Minute Order, United States v.

Yale, 3:20-cv-01534-CSH (D. Conn., Feb. 3, 2021)

(ECF No. 51) (Order dismissing case in light of the

Plaintiff United States’ Notice of Voluntary

Dismissal). In other words, just because parties may

be aligned on paper at one point in time, does not

mean that they are aligned fully and have the same

interests. 13

13 Some agencies have even been known to engage in “sue and

settle” practices, whereby plaintiffs sue Executive Branch

agencies staffed with sympathetic political appointees, and reach

swift settlement agreements. See Zhonette Brown, Biden’s

Activist Recruits Raise Risk of ‘Sue and Settle’ Collusion,

National

Review

Online

(Feb.

2021),

https://www.nationalreview.com/2021/02/bidens-activistrecruits-raise-risk-of-sue-and-settle-collusion/ (“In 2015, the U.S.

Senate Committee on Environment and Public Works published

a report finding that sue and settle provided activists ‘significant

leverage’ to drive and influence rulemaking.”).

II.

Biden’s Nomination of Catherine Lhamon

to be Assistant Secretary for Civil Rights

Demonstrates Continued Hostility to the

Title IX Regulations.

On May 13, 2021, President Biden announced his

intent to nominate Catherine Lhamon to the position

of Assistant Secretary for Civil Rights in the

Department. See The White House, President Biden

Announces His Intent to Nominate Catherine

Lhamon for Assistant Secretary for Civil Rights at the

Department of Education (May 13, 2021). 14 Lhamon

previously presided over the office from 2013 to 2017,

before Secretary DeVos announced her intention to

reform the Title IX process. See Tyler Kingkade,

Biden will nominate Catherine Lhamon to lead

Education Department’s civil rights office, NBC News

(May 13, 2021) (“Lhamon’s nomination is the latest

example of the White House steering civil rights policy

back toward the Obama administration’s approach

and is likely to please advocacy groups for victims of

sexual assault and civil rights organizations.”). 15

Unsurprisingly, Lhamon was a fierce critic of the

prior administration, and harshly criticized the Title

IX regulations even before they were publicly

available in May 2020.

14 https://www.whitehouse.gov/briefing-room/statementsreleases/2021/05/13/president-biden-announces-his-intent-tonominate-catherine-lhamon-for-assistant-secretary-for-civilrights-at-the-department-of-education/.

15 https://www.nbcnews.com/politics/politics-news/biden-willnominate-catherine-lhamon-lead-education-department-s-civiln1267166

Catherine Lhamon (@CatherineLhamon), Twitter

(May 5, 2020, 6:48 PM). 16

At her July 13, 2021 confirmation hearing before

the Senate Health, Education, Labor, and Pensions

(HELP) Committee, she was asked whether she

continued to believe the content of her tweet. She

confirmed that she did:

16 https://twitter.com/CatherineLhamon/status/

1257834691366772737.

Senator Cassidy: Do you think … the law as

it has been implemented has given the right

to rape and sexually harass with impunity?

Ms. Lhamon: I think the regulation; so I

think what I said in the tweet.

The

regulation permits students to rape and

sexually harass with impunity.

See Hearing, Nominations of Catherine Lhamon to be

Assistant Secretary for Civil Rights at the

Department of Education, Elizabeth Brown to be

General Counsel of the Department of Education, and

Roberto Rodriguez to be Assistant Secretary for

Planning, Evaluation, and Policy Development of the

Department of Education, U.S. Senate HELP Comm.,

(Jul. 13, 2021), at 1:29:15. 17

Moreover, she made it clear that her objections

were not just policy-based, but also legal in nature:

Republican Sen. Bill Cassidy asked Lhamon

about a May 2020 tweet in which she said

that then-Secretary DeVos’s rules made it

“permissible to rape and sexually harass

students with impunity.” Cassidy asked her

if she would enforce the law…. She told the

committee,

“The

regulation

permits

17 https://www.help.senate.gov/hearings/nominations-of-

catherine-lhamon-to-be-assistant-secretary-for-civil-rights-atthe-department-of-education-elizabeth-brown-to-be-generalcounsel-of-the-department-of-education-and-roberto-rodriguezto-be-assistant-secretary-for-planning-evaluation-and-policydevelopment-of-the-department-of-education.

students to rape and sexually harass with

impunity. I think that the law, that the

regulation has weakened the intent of Title

IX that Congress wrote.

Samuel Kim, Biden’s civil rights nominee remains

unapologetically divisive on Title IX, Yahoo News,

(Jul. 14, 2021). 18 Lhamon left no doubt that she

thought the Title IX regulations were in tension with

the statute.

After her hearing, the Senate HELP Committee

issued Questions for the Record, which asked Lhamon

to further clarify her answer on this topic. She

responded:

When I used the term “impunity” quoted

here, I referred to the expanded focus within

the existing Title IX regulations on reducing

the scope of liability for recipients of Federal

financial assistance, at the expense of the

nondiscrimination mandate of the law and

in contrast to decades of OCR policy and

practice during both Republican and

Democratic presidential administrations

with respect to the implementation and

enforcement of Title IX.

U.S. Senate HELP Committee Questions for the

Record for Catherine Lhamon, Nominee to be

Assistant Secretary for Civil Rights, Department of

18 https://www.yahoo.com/now/biden-civil-rights-nominee-

remains-144000457.html

Education (Jul. 14, 2021). 19 Once again, Ms. Lhamon

suggested that the Title IX regulations were contrary

to the “nondiscrimination mandate of the law,” and

contrary to the practice of prior administrations of

both parties.

While Lhamon’s confirmation remains in doubt

at the time of this filing, the fact that she remains

President Biden’s nominee to lead the Office for Civil

Rights demonstrates the Administration’s overall

position on the 2020 Title IX regulations. The net is

that the fate of Secretary DeVos’s historic effort to

enshrine protections against sexual harassment into

federal regulations is in the hands of an

Administration hostile to those very efforts at a policy

level, and even skeptical or dismissive of their

legality.

III.

The District Court Erred in its Opinion

Setting Aside One Part of the Title IX

Regulations.

On July 28, 2021, the District Court in this case

held that 34 C.F.R. § 106.45(b)(6)(i) was set aside

under the Administrative Procedure Act as arbitrary

and capricious. See Victim Rights Law Center v.

Cardona, --- F.Supp.3d ---, 2021 WL 3185743 (D.

Mass., Jul. 28, 2021). The opinion of the District

Court stated:

19 Republican-HELP-Committee-QFRs-for-OCR-Nominee-

Catherine-Lhamon-7.19.21.pdf (mslegal.org)

Neither the Government’s briefing nor this

Court’s thorough review of the record

indicates that the Department considered or

adequately explained why it intended for

section 106.45(6)(i) to compound with a

respondent’s procedural safeguards quickly

to render the most vital and ultimate

hallmark of the investigation—the hearing

—a remarkably hollow gesture.

Id. at *15.

Essentially, the district court was

concerned that because part of Section 106.45(b)(6)(i)

requires that Title IX decision-makers not rely on

statements that have not been subjected to crossexamination, there would be some cases where

complainants could never “overcome the presumption

of nonresponsibility to attain anything beyond the

supportive measures that he or she is offered when

they first file the formal complaint.” Id. at *15. 20

20 To reach this conclusion, the District Court seemed to place a

significant amount of weight on the idea that a respondent

accused of sexual harassment could try to work with their school

to schedule a hearing at an inconvenient time for all non-party

witnesses. See id. at *15 (“[A] respondent may work with the

school to schedule the live hearing, and nothing in the Final Rule

or administrative record prevents him or her from doing so to

further a disruptive agenda—e.g., at an inopportune time for

third-party witnesses.”). There was no evidence in the record,

however, that a respondent could actually succeed in tricking a

school, without its knowledge, into scheduling a hearing that

happens to be an inconvenient time for all non-party witnesses.

The judge then held that it was “this Court’s

responsibility under section 706(2)(A) of the APA to

ensure that the Department considered this necessary

and likely consequence of section 106.45(b)(6)(1) [sic]

and require the agency to provide a reasoned

explanation why it nevertheless intended this result.”

See id. at *16. Then, stating that it had not seen such

an explanation, the District Court ruled that

106.45(b)(6)(i) was arbitrary and capricious. See id.

Indeed, the Title IX regulations require schools to have a

process to temporarily delay proceedings for good cause,

including the absence of a witness:

A recipient’s grievance process must … [i]nclude

reasonably prompt time frames for conclusion of the

grievance process, including reasonably prompt time

frames for filing and resolving appeals and informal

resolution processes if the recipient offers informal

resolution processes, and a process that allows for the

temporary delay of the grievance process or the

limited extension of time frames for good cause with

written notice to the complainant and the respondent

of the delay or extension and the reasons for the

action. Good cause may include considerations such

as the absence of a party, a party’s advisor, or a

witness; concurrent law enforcement activity; or the

need for language assistance or accommodation of

disabilities.

34 C.F.R. 106.45(b)(1)(v) (emphasis added). Accord Preamble,

Final Rule, 85 Fed. Reg. at 30346–47 (“If the respondent

‘wrongfully procures’ a complainant’s absence, for example,

through intimidation or threats of violence, and the recipient has

notice of that misconduct by the respondent (which likely

constitutes prohibited retaliation), the recipient must remedy

the retaliation, perhaps by rescheduling the hearing to occur at

a later time when the complainant may appear with safety

measures in place.”).

(“[I]n the absence of evidence that the Department

adequately considered section 106.45(b)(6)(i)’s

prohibition on statements not subject to crossexamination, this Court finds and rules said

prohibition arbitrary and capricious.”).

But, with respect, the District Court got it wrong.

Demonstrably. An entire section of the Title IX

regulations’ preamble is entitled “No Reliance on

Statements of a Party Who Does Not Submit to CrossExamination.” Final Rule, 85 Fed. Reg. at 30344

(discussing comments on provision).

The very provision that the District Court took

issue with had been amended, after considering public

comment, from its prior version, in the Notice of

Proposed Rulemaking:

NPRM

(Nov. 2018)

Final Rule

(May 2020)

Proposed

106.45(b)(3)(vii)

Section 106.45(b)(6)(i)

If a party or witness

If a party or witness does

does not submit to

not submit to crosscross-examination at

examination at the live

the hearing, the

hearing, the decisiondecision-maker must

maker(s) must not rely on

not rely on any

any statement of that

statement of that party party or witness in

or witness in reaching a reaching a determination

determination

regarding responsibility;

regarding

provided, however, that

responsibility.

the decision-maker(s)

cannot draw an

inference about the

determination

regarding

responsibility based

solely on a party’s or

witness’s absence from

the live hearing or

refusal to answer crossexamination or other

questions.

NPRM, 83 Fed. Reg. at 61498;

§ 106.45(b)(6)(i) (emphasis supplied).

C.F.R.

Moreover, the Department had indeed

considered numerous comments from the public

regarding the possibility that in some cases, a

decision-maker would not be able to conclude that

sexual harassment had occurred due to the crossexamination requirement; it nevertheless felt that the

strong interest in preserving cross-examination

outweighed that possibility.

For instance, the preamble to the Title IX

regulations included the following statements:

•

“Commenters argued it is unfair to punish a

survivor by denying relief for a meritorious claim

just because key witnesses refuse to testify or

refuse to submit to cross-examination.” Final

Rule, 85 Fed. Reg. at 30344.

•

“Commenters argued that the statements of

witnesses should not be excluded due to

nonappearance or refusal to submit to crossexamination,

because

witnesses

may

unavailable for legitimate reasons such as

studying abroad, illness, graduation, out-of-state

residency, class activities, and so forth.” Id. at

30345.

•

“Commenters argued that the final regulations

should allow for evidence not subject to crossexamination (‘uncrossed’) to be taken into account

‘for what it’s worth’ by the decisionmaker who may

assign appropriate weight to uncrossed statements

rather than disregarding them altogether, so as to

provide more due process and fundamental

fairness to both parties in the search for truth.” Id.

•

“The Department recognizes that not every party

or witness will wish to participate, and that

recipients have no ability to compel a party or

witness to participate.” Id. at 30322.

•

“Further, § 106.45(b)(6)(i) includes language that

directs

decision-maker

reach

the

determination regarding responsibility based on

the evidence remaining even if a party or witness

refuses to undergo cross-examination, so that even

though the refusing party’s statement cannot be

considered, the decision-maker may reach a

determination based on the remaining evidence so

long as no inference is drawn based on the party or

witness’s absence from the hearing or refusal to

answer cross-examination (or other) questions.”

Id.

In the same vein, the preamble to the Title IX

regulations repeatedly emphasizes the value of crossexamination so heavily that it specifically

contemplates that some forms of evidence will be

disallowed without cross-examination, despite the

fact that the evidence could be highly probative:

The prohibition on reliance on “statements”

applies not only to statements made during

the hearing, but also to any statement of the

party or witness who does not submit to

crossexamination. … Thus, police reports,

SANE reports, medical reports, and other

documents and records may not be relied on

to the extent that they contain the

statements of a party or witness who has not

submitted to cross-examination. While

documentary evidence such as police reports

or hospital records may have been gathered

during investigation and, if directly related

to the allegations inspected and reviewed by

the parties, and to the extent they are

relevant, summarized in the investigative

report, the hearing is the parties’ first

opportunity to argue to the decision-maker

about the credibility and implications of

such evidence. Probing the credibility and

reliability of statements asserted by

witnesses contained in such evidence

requires the parties to have the opportunity

to crossexamine the witnesses making the

statements.

Id. at 30349. In short, it is difficult to understand how

the District Court did not conclude that the

Department fully and robustly considered and

intended the consequences of its actions.

Indeed, the Department even considered that

some respondents would engage in gamesmanship to

reduce the chance that relevant evidence would be

admitted and relied upon; it nevertheless proceeded

as it did. Id. (“This provision does apply to the

situation where evidence involves intertwined

statements of both parties (e.g., a text message

exchange or e-mail thread) and one party refuses to

submit to cross-examination and the other does

submit, so that the statements of one party cannot be

relied on but statements of the other party may be

relied on.”); accord Department of Education Office for

Civil Rights OPEN Center Technical Assistance

Repository, Cross-Examination, at 5, 8-9 (January

2021) (reiterating that the Title IX regulations’

limitations on admission of uncrossed statements

apply even when a party declines to submit to crossexamination to avoid their own text messages or other

statements being admitted). 21

Moreover, the very provision that the District

Court held was insufficiently considered was actually

adopted as a considered alternative to a harsher rule,

which would have provided for outright dismissal in

cases where cross-examination could not occur:

The Department declines to change this

provision so the consequence of refusal to

submit to cross-examination is dismissal of

the case rather than non-reliance on the

refusing party or witness’s statement. Such

a change would operate only against

complainants’

interests

because

respondent could choose to refuse crossexamination knowing the result would be

dismissal (which, presumably, is a positive

result in a respondent’s view). This would

essentially give respondents the ability to

control the outcome of the hearing, running

contrary to the purpose of the final

regulations in giving both parties equal

21 https://www2.ed.gov/about/offices/list/ocr/open/cross-

examination.pdf (last visited, August 18, 2021).

opportunity to meaningfully be heard before

an impartial decision-maker reaches a

determination regarding responsibility.

See Final Rule, 85 Fed. Reg. at 30345.

What will the Biden Administration do with

this evidence that the District Court missed? Any

number of occurrences may result next. The parties

may allow the District Court’s judgment to stand, for

instance. Or the plaintiff may appeal, seeking to

establish that the District Court’s ruling was too

narrow. Or the government may file an appeal, but

opt to shift course and dismiss an appeal once they are

shamed by their supporters into letting Section

106.45(b)(6)(i) be invalidated.

What is clear,

regardless of what happens next in the underlying

litigation, is that the Petitioner ought to be in the case

in order to engage in a robust defense of the Title IX

regulations.

IV.

Petitioners Must Be Able to Intervene in

Order to Appeal the District Court’s

Erroneous Ruling.

“Denied intervention, movants are left with no

recourse in settlement discussions and no say in

whether to appeal an adverse ruling.” Pet., at 35.

Normally, intervening parties have the ability

to appeal a final adverse judgment. See Stringfellow

v. Concerned Neighbors in Action, 480 U.S. 370 , 37576 (1987) (“An intervenor, whether by right or by

permission, normally has the right to appeal an

adverse final judgment by a trial court.”).

That is true even when the subject at issue is

the validity of federal regulations, and the federal

government has declined to appeal an adverse ruling.

See Western Watersheds Project v. Kraayenbrink, 632

F.3d 472, 482 (9th Cir. 2011) (“The end result is that

Intervenors seek to defend the 2006 Regulations—

regulations that the BLM itself no longer seeks to

defend.”); see id. at 482 (“While this situation presents

an unusual circumstance, it is not one without

precedent, and it is well established that the

government is not the only party who has standing to

defend the validity of federal regulations.”); see also

Didrickson v. U.S. Dept. of Interior, 982 F.2d 1332,

1339 (9th Cir. 1992) (“[T]he FSO do not claim to be

seeking judicial review of the Government’s decision

not to appeal. Rather, the FSO are seeking to protect

what they believe is the correct interpretation of the

MMPA.”); National Wildlife Federation v. Lujan, 928

F.2d 453, 456 (D.C. Cir. 1991) (“Although the

Secretary is not appealing this decision, Industry is.”).

Even with respect to intervenor standing on

appeal, courts are willing to consider whether the

district court judgment itself creates a concrete injury:

In these circumstances, Intervenors’

standing need not be based on whether they

would have had standing to independently

bring this suit, but rather may be contingent

on whether they have standing now based

on a concrete injury related to the judgment.

To invoke this court’s jurisdiction on the

basis of an injury related to the judgment,

Intervenors must establish that the district

court’s judgment causes their members a

concrete and particularized injury that is

actual or imminent and is likely to be

redressed by a favorable decision.

Western Watersheds Project, 632 F.3d at 482 (internal

citations omitted); see also Idaho Farm Bureau

Federation v. Babbitt, 58 F.3d 1392 (9th Cir. 1995)

(“Intervenors can allege a threat of injury stemming

from the order they seek to reverse, an injury which

would be redressed if they win on appeal.”).

Given the Biden Administration’s interest in

pursuing changes to the Title IX regulations, and the

onerous nature of the process under the APA, it is

highly likely that it will not appeal the District Court’s

decision setting aside part of 34 C.F.R. 106.45(b)(6)(i).

For that reason alone, the Biden Administration is

unlikely to adequately defend the Title IX regulations.

Even if the Department of Education

Planned to Appeal the District Court

Order, Congress May Stop Them.

On July 29, 2021, the House of Representatives

passed H.R. 4502. 22 That bill is entitled: “Making

appropriations for the Departments of Labor, Health

and Human Services, and Education, and related

22 Available at

https://www.congress.gov/117/bills/hr4502/BILLS117hr4502eh.pdf

agencies for the fiscal year ending September 30,

2022, and for other purposes.” Although it

appropriates certain funds to the Department of

Education, it contains a provision stating:

Sec. 529. None of the funds made available

by this Act may be used to implement or

enforce section 106.6(h), section 106.45(b),

or the definition of “formal complaint” in

section 106.30(a), of title 34 of the Code of

Federal Regulations as amended by the

final rule entitled, “Nondiscrimination on

the Basis of Sex in Education Programs or

Activities Receiving Federal Financial

Assistance” published in the Federal

30026).

The bill was received in the U.S. Senate on August 3,

2021, and remains pending at the time of this brief’s

filing.

Put simply, there is a possibility that

Department of Education employees—including

attorneys in its Office for Civil Rights and its Office of

the General Counsel—will feel bound by a statute that

precludes them from using any funds to “implement

or enforce” parts of the Title IX regulations, meaning

that they would be limited in reviewing, commenting,

or drafting briefs to defend the law. (Additionally,

there is nothing stopping Congress from limiting its

appropriate to the Department of Justice in a similar

manner).

It is hard to imagine that an executive branch

agency—the client in this matter—might be legally

precluded from assisting in its own defense, and yet

might also be presumed to adequately help defend its

regulations.

♦

CONCLUSION

For the foregoing reasons, this Court should

grant the petition for writ of certiorari.

Respectfully submitted,

Cristen Wohlgemuth

Counsel of Record

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

cristen@mslegal.org

August 20, 2021

Attorney for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.