State of New York v. United States Department of Education

Background

The State of New York and the Board of Education for the City School District of the City of New York sued the United States Department of Education and Elisabeth DeVos under the Administrative Procedure Act. They challenged the Department’s Final Rule, titled “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,” which was scheduled to take effect on August 14, 2020.

The plaintiffs alleged that the Final Rule exceeded the Department’s statutory authority, was arbitrary and capricious, and was issued without following legally required procedures such as notice and comment. Among other changes, the rule redefined sexual harassment and added grievance procedures requiring live hearings and cross-examination by each party’s chosen adviser in postsecondary proceedings. The plaintiffs also alleged that the rule limited schools’ responsibilities to respond to sexual harassment and required or allowed dismissal of some complaints.

The plaintiffs had also filed a motion for a preliminary injunction seeking to stop implementation of the rule or, alternatively, to delay its effective date. That motion was not the subject of this opinion.

FIRE’s Motion

The Foundation for Individual Rights in Education (FIRE), described as a nonprofit membership organization with about 50 employees and a network of student members, sought to intervene as a defendant under Federal Rule of Civil Procedure 24(a)(2) and 24(b)(1)(B). FIRE supported the Final Rule, but it did not seek to defend the rule solely on the Administrative Procedure Act issues raised in the complaint. Instead, it wanted to argue that the rule’s provisions were constitutionally required under the First Amendment and due process.

The plaintiffs opposed intervention but did not oppose FIRE’s filing an amicus brief supporting the defendants’ position. The defendants took no position on the motion.

Intervention as of Right

Rule 24(a)(2) permits intervention as of right when the proposed intervenor timely applies, has an interest in the action, shows that the interest may be impaired by the case’s outcome, and shows that the existing parties do not adequately protect that interest. The court stated that all four requirements must be met.

The plaintiffs did not dispute that FIRE’s motion was timely or that FIRE had an interest in the action. The court nevertheless held that FIRE failed to show that the case’s disposition would impair its ability to protect that interest. The complaint challenged the Final Rule only under the Administrative Procedure Act. The court therefore did not need to decide whether the Constitution required the rule’s definition of sexual harassment or its hearing and cross-examination procedures.

The court also said FIRE’s proposed constitutional arguments were broader than the issues in the complaint. FIRE could bring a separate lawsuit asserting that the Final Rule was constitutionally required, or that earlier Department policies were unconstitutional if the Final Rule were invalidated. The court further rejected FIRE’s claimed economic interest as speculative.

The court found that the Department of Education would vigorously defend the Final Rule against the Administrative Procedure Act claims. Because FIRE and the Department shared the same objective in this case—upholding the Final Rule—and FIRE had not shown collusion, conflicting interests, or incompetence, the court held that the defendants adequately represented FIRE’s interests. Different litigation strategies or motives were not enough to justify intervention as of right. The court therefore denied intervention as of right.

Permissive Intervention

Rule 24(b)(1)(B) allows a court, in its discretion, to permit intervention when the proposed intervenor has a claim or defense sharing a common legal or factual question with the main action. The court must also consider whether intervention would cause undue delay or prejudice.

The court concluded that the reasons defeating intervention as of right also strongly weighed against permissive intervention. It additionally held that FIRE’s constitutional defenses would unduly complicate the case and prejudice the plaintiffs. Those defenses would introduce new legal issues without adding to the factual record relevant to the Administrative Procedure Act dispute.

The court explained that deciding whether the Final Rule was valid under the Administrative Procedure Act differed from deciding whether the Constitution affirmatively required the rule’s provisions. If the Final Rule were upheld under the Administrative Procedure Act, FIRE’s constitutional argument would be moot. If the rule were invalidated, FIRE could bring a separate lawsuit. The court also noted the short schedule for the preliminary-injunction motion and the rule’s approaching effective date. It denied permissive intervention.

Disposition

Judge John G. Koeltl denied FIRE’s motion to intervene. The court permitted FIRE to file an amicus brief by July 17, 2020, to the extent FIRE wished to raise issues helpful to deciding the existing case, and directed the Clerk to close Docket No. 24. The opinion did not decide whether the Final Rule was valid under the Administrative Procedure Act or constitutionally required.