Students and Parents for Privacy et al v. United States Department of Education et al

Filing 56

MEMORANDUM Opinion and Order. The motion of the Illinois Safe Schools Alliance and Students A, B, and C, by and through their parents and 6 legal guardians Parents A, B, and C, to intervene as defendants 30 is granted pursuant to Federal Rule of Civil Procedure 24(b)(1). Signed by the Honorable Jorge L. Alonso on 6/15/2016. Notice mailed by judge's staff (ntf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STUDENTS AND PARENTS FOR
PRIVACY, a voluntary unincorporated
association; C.A., a minor, by and
through her parent and guardian, N.A.;
A.M., a minor, by and through her parents
and guardians, S.M. and R.M.; N.G., a
minor, by and through her parent and
guardian, R.G.; A.V., a minor, by and
through her parents and guardians, T.V.
and A.T.V.; and B.W., a minor, by and
through his parents and guardians, D.W.
and V.W.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT
OF EDUCATION; JOHN B. KING JR.,
in his official capacity as United States
Secretary of Education; UNITED STATES
DEPARTMENT OF JUSTICE; LORETTA
E. LYNCH, in her official capacity as
United States Attorney General; and
SCHOOL DIRECTORS OF TOWNSHIP
HIGH SCHOOL DISTRICT 211,
Defendants.

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No. 16 C 4945
Judge Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Before the Court is a motion to intervene, brought by the Illinois Safe Schools Alliance
and Students A, B, and C, by and through their parents and legal guardians, Parents A, B, and C
(the “proposed intervenors”). The motion is granted for the reasons stated below.
This action was filed by Students and Parents for Privacy (“SPP”), which according to
the verified complaint is a voluntary unincorporated association of 73 parents and 63 students
who are attending or will soon attend schools in Township High School District 211 (the

“District”).1 There are also five individual student plaintiffs, who are minors suing through their
parents. Four of the individual plaintiffs currently attend a school in the District and one will be
attending a school in the District starting this fall. Plaintiffs are suing the District and four
federal defendants: the United States Department of Education (“DOE”) and the United States
Department of Justice (“DOJ”) (collectively, the “Departments”), the United States Secretary of
Education, and the United States Attorney General.
Plaintiffs’ claims arise out of the DOE’s interpretation of the term “sex” as used in Title
IX and its enforcement of the statute that flows from this interpretation, as well as an
“Agreement to Resolve” (the “Agreement”) that the DOE’s Office of Civil Rights entered into
with the District. The Agreement pertains to the use of the girls’ locker room by proposed
intervenor Student A, a transgender girl who attends Fremd High School (“Fremd”).

In

plaintiffs’ words, they seek to “stop the [DOE] and [the District] from continuing to trample
students’ privacy and other constitutional and statutory rights by forcing 14- to 17-year-old girls
to use locker rooms and restrooms with biological males”; “set aside DOE’s ultra
vires legislative rule redefining ‘sex’ in Title IX to include gender identity which, despite
originating in a non-binding guidance document and being adopted without following the
procedures mandated by the Administrative Procedure Act, is being enforced against schools
across the country”; and “enjoin DOE’s enforcement of this rule against District 211 to the
detriment of Plaintiffs.” (ECF No. 1, V. Compl. ¶ 1.) Plaintiffs assert claims for violation of the
Administrative Procedure Act (Count I); the right to privacy (Count II); parents’ right to direct

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The District comprises Palatine, Fremd, Conant, Schaumburg, and Hoffman Estates High
Schools and two therapeutic special education schools, Academy-North and the Higgins Education
Center. See Township High School District 211, History, http://adc.d211.org/about-us-home/history
(last visited June 15, 2016).
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the education and upbringing of their children (Count III); Title IX (Count IV); the Illinois and
federal Religious Freedom Restoration Acts (Counts V and VI); and the Free Exercise Clause of
the First Amendment (Count VII). Counts I and VI are brought against the federal defendants
only, Counts IV and V against the District only, and the remainder against all defendants.
Plaintiffs seek declaratory and injunctive relief and nominal damages.
The proposed intervenors are Student A; Student B, a seventh-grade transgender boy who
will begin attending Fremd in fall 2017; Student C, an eighth-grade transgender boy who will
begin attending Hoffman Estates High School this fall; and the Illinois Safe Schools Alliance
(the “Alliance”), which describes itself as an entity that “promotes safety, support, and healthy
development for lesbian, gay, bisexual, transgender, and questioning (LGBTQ) youth in Illinois
schools through advocacy, education, youth organizing, and research.” (ECF No. 32, Mem.
Supp. Mot. Intervene at 6.) Students A, B, and C and the Alliance seek intervention pursuant to
both Federal Rule of Civil Procedure 24(a)(2) (intervention as a matter of right) and 24(b)(1)(B)
(permissive intervention). The District does not oppose the motion. (ECF No. 45.) The federal
defendants oppose the request for intervention as of right and take no position on the request for
permissive intervention. (ECF No. 46.) Plaintiffs oppose the motion. (ECF No. 47.)
Rule 24(a)(2) provides that on timely motion, the court must permit intervention where
the movant “claims an interest relating to the property or transaction that is the subject of the
action, and is so situated that disposing of the action may as a practical matter impair or impede
the movant’s ability to protect its interest, unless existing parties adequately represent that
interest.” Fed. R. Civ. P. 24(a)(2). “A party has a right to intervene when: (1) the motion to
intervene is timely filed; (2) the proposed intervenors possess an interest related to the subject
matter of the action; (3) disposition of the action threatens to impair that interest; and (4) the
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named parties inadequately represent that interest.” Wis. Educ. Ass’n Council v. Walker, 705
F.3d 640, 657-58 (7th Cir. 2013) (citing Ligas ex rel. Foster v. Maram, 478 F.3d 771, 773 (7th
Cir. 2007)). The burden is on the party seeking to intervene of right to show that all four criteria
are met, and if they are not, the court must deny intervention of right. Reid L. v. Ill. State Bd. of
Educ., 289 F.3d 1009, 1017 (7th Cir. 2002). “In evaluating the motion to intervene, the district
court must accept as true the non-conclusory allegations of the motion . . . .” Lake Investors
Dev. Grp., Inc. v. Egidi Dev. Grp., 715 F.2d 1256, 1258 (7th Cir. 1983).
Plaintiffs challenge the second and fourth elements of this analysis, and the federal
defendants challenge the fourth. The Court will discuss only the fourth element because it is
dispositive as to intervention under Rule 24(a)(2). There does not appear to be any dispute that
the District inadequately represents the movants’ interests, but the federal defendants are another
matter.

“A party seeking intervention as of right must only make a showing that the

representation ‘may be’ inadequate and ‘the burden of making that showing should be treated as
minimal.’”•Ligas, 478 F.3d at 774 (quoting Trbovich v. United Mine Workers of Am., 404 U.S.
528, 538 n.10 (1972)). “However, when the representative party is a governmental body charged
by law with protecting the interests of the proposed intervenors, the representative is presumed
to adequately represent their interests unless there is a showing of gross negligence or bad faith.”
Id. (citing United States v. S. Bend Cmty. Sch. Corp., 692 F.2d 623, 627 (7th Cir. 1982); United
States v. Bd. of Sch. Comm’rs of Indianapolis, 466 F.2d 573, 575-76 (7th Cir. 1972)). The
Departments are charged with effectuating and enforcing the provisions of Title IX and its
regulations. 20 U.S.C. §§ 1681-82; 34 C.F.R. § 106.3 (DOE); 28 C.F.R. § 54.110 (DOJ); Exec.
Order No. 12,250, 45 Fed. Reg. 72,995 (1980) (providing that the Attorney General shall
coordinate executive agencies’ implementation and enforcement of Title IX’s provisions). The
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DOJ is also authorized to, and does, enforce under Title IV the guarantees of the Equal
Protection Clause. 42 U.S.C. § 2000c-6; see, e.g., Statement of Interest of the United States,
Tooley v. Van Buren Public Schs., No. 2:14-CV-13466-AC-DRG (E.D. Mich.), available at
https://www.justice.gov/sites/default/files/crt/legacy/2015/02/27/tooleysoi.pdf (last visited June
15, 2016). The movants make no attempt to show gross negligence or bad faith on the federal
defendants’ part and thus fail to overcome the presumption that the federal defendants
adequately represent their interests.
The Court will, however, permit Students A, B, and C and the Alliance to intervene in
this action pursuant to Rule 24(b). “On timely motion,” Fed. R. Civ. P. 24(b)(1), “[p]ermissive
intervention is within the discretion of the district court where the applicant’s claim and the main
action share common issues of law or fact and where there is independent jurisdiction.” Ligas,
478 F.3d at 775 (citing Sec. Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1381 (7th
Cir. 1995)). The movants easily satisfy this standard. Students A, B, and C assert rights under
Title IX and the Equal Protection Clause, and they, along with the Alliance, seek to defend the
Agreement and the DOE’s interpretation of the term “sex” in Title IX.

Plaintiffs, citing

Menominee Indian Tribe of Wisconsin v. Thompson, 164 F.R.D. 672, 678 (W.D. Wis. 1996) and
another district court decision relying on Menominee Indian Tribe, contend that “the case for
permissive intervention disappears” when a proposed intervenor fails to overcome the
presumption of adequate representation by the government. (Pls.’ Resp. at 12.) But the court in
Menominee Indian Tribe did not cite any authority for its conclusion, which effectively creates
an additional hurdle for proposed intervenors that does not comport with the Seventh Circuit’s
approach to permissive intervention. See, e.g., Schipporeit, 69 F.3d at 1381 (“Other than [the]
two requirements [of a common question of law or fact and independent jurisdiction], . . .
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intervention under 24(b)(2) is entirely discretionary.”); Solid Waste Agency of N. Cook Cty. v.
U.S. Army Corps of Eng’rs, 101 F.3d 503, 509 (7th Cir. 1996) (rejecting the district court’s
imposition of an additional requirement for permissive intervention).
Rule 24(b)(3) further provides that “[i]n exercising its discretion, the court must consider
whether the intervention will unduly delay or prejudice the adjudication of the original parties’
rights.” Plaintiffs argue that intervention will “dramatically change the focus of this case” in that
movants will “undoubtedly begin submitting reports from psychologists, therapists and doctors
for Students A, B, and C, describing the various treatments they receive for gender dysphoria,”
which will necessitate rebuttal and discovery on issues that are not “germane to this lawsuit.”
(Pls.’ Resp. at 13.) It is difficult to see how such issues are not “germane” to this suit when the
complaint is premised in part on the assertion that “‘sex’ means male and female in the binary
and biological sense.” (V. Compl. ¶ 291.) In any event, plaintiffs’ relevancy argument will be
hotly contested. And plaintiffs do not account for the fact that granting the motion to intervene
could obviate subsequent lawsuits. See City of Chi. v. Fed. Emergency Mgmt. Agency, 660 F.3d
980, 986 (7th Cir. 2011) (“Granting the airlines’ motion to intervene could not have produced a
net delay when one considers that allowing them into this litigation might head off a second
suit.”).

In view of that consideration, plaintiffs’ concern about unwieldy or prolonged

proceedings appears overblown.

Intervention may make this case more complex, but not

unnecessarily complex. The Court agrees with the proposed intervenors that their participation
would enable the Court to, as the Seventh Circuit put it in Schipporeit, “address important issues
in this case once, with fairness and finality.” See 69 F.3d at 1381. Accordingly, the motion of
the Illinois Safe Schools Alliance and Students A, B, and C, by and through their parents and

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legal guardians Parents A, B, and C, to intervene as defendants [30] is granted pursuant to
Federal Rule of Civil Procedure 24(b)(1).

SO ORDERED.

ENTERED:

June 15, 2016

__________________________________
JORGE L. ALONSO
United States District Judge

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