Board of Education of the Highland Local School District v. U.S. Department of Education et al
Filing
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ORDER granting 11 Motion for Leave to File; granting 15 Motion to Intervene; granting 16 Motion to Proceed Pseudonymously. Signed by Judge Algenon L. Marbley on 8/15/2016. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BOARD OF EDUCATION OF THE
:
HIGHLAND LOCAL SCHOOL DISTRICT, :
:
Plaintiff,
:
:
v.
:
:
UNITED STATES DEPARTMENT
:
OF EDUCATION, et al.,
:
:
Defendants.
:
Case No. 2:16-CV-524
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kimberly A. Jolson
OPINION & ORDER
This matter is before the Court on the Motions of Jane Doe, Joyce Doe, and John Doe to
Intervene as Third-Party Plaintiffs and to Proceed Pseudonymously. (Docs. 15, 16.) Plaintiff
Board of Education of the Highland Local School District (the “School District”) opposes the
Motion to Intervene. (Doc. 24.) The State of Ohio has also filed a Motion for Leave to File an
Amicus Brief in Support of the School District’s Motion for Preliminary Injunction. (Doc. 11.)
The Court GRANTS the three motions.
I.
BACKGROUND
Proposed Intervenor, Jane Doe, is an eleven-year-old transgender girl who attends
Highland Elementary School in the Highland Local School District. (Proposed Intervenor
Compl., Doc. 15-1 at ¶ 1.) She alleges that the School District has treated her differently than
other girls, leading to Jane’s bullying and humiliation by teachers, staff, and other students. (Id.)
In December 2013, Jane’s legal guardian, Joyce Doe, filed a complaint with the Defendant
United States Department of Education’s Office for Civil Rights (“OCR”). (Id. at ¶ 72.) The
complaint alleged that Highland discriminated against Jane on the basis of her sex by requiring
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her to use a separate gender-neutral bathroom and denying her access to the same bathrooms
used by other female students. (Id.) OCR later amended the complaint to include an additional
allegation, namely that school staff members subjected Jane to harassment and the School
District failed to respond appropriately when staff members were informed of incidents of other
students’ harassment of Jane. (Id. at ¶ 73.) On March 29, 2016, OCR notified Highland that it
had concluded that Highland’s treatment of Jane was in violation of Title IX regulations.1 (Id. at
¶ 75.)
On June 10, 2016, the School District commenced this lawsuit, alleging that Defendants’
actions violated: (1) the Administrative Procedure Act; (2) the Spending Clause of Article I,
Section 8 of the United States Constitution; (3) the federalism guarantees of the United States
Constitution; (4) the separation-of-powers guarantees in the United States Constitution; and (5)
the Regulatory Flexibility Act. (Compl., Doc. 1 at ¶¶ 132-247.) On July 15, 2016, the School
District filed a motion for a preliminary injunction, seeking to enjoin enforcement of the
offending regulations. (Doc. 10.) Six days later, Jane Doe and her legal guardians moved to
intervene in this suit as Third-Party Plaintiffs (Doc. 15), bringing claims against Plaintiff/ThirdParty Defendant Board of Education of the Highland Local School District for violations of: (1)
her Fourteenth Amendment right to equal protection of the laws; (2) her right to be free from sex
discrimination under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.;
and (3) her fundamental right to privacy under the United States Constitution. (Doc. 15-1 at ¶¶
78-108.) The Does also moved for leave to proceed pseudonymously. (Doc. 16.)
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The parties dispute whether the joint letter issued to schools by the Departments of Education
and Justice on May 13, 2016, as well as other documents issued by OCR regarding transgender
students, constitute a new legislative rule or merely guidance. The Court issues no decision on
the merits of that dispute at this time.
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Plaintiff opposes the motion for intervention as of right and for permissive intervention.
(Doc. 24.) Defendants assert that they are able to represent Jane Doe’s interests adequately in
defending the Government’s interpretation of Title IX, but they take no position on her request
for permissive intervention and do not oppose her request to intervene as of right insofar as it
relates to her proposed third-party claims and the individual remedies she seeks. (Doc. 25 at 1.)
No party opposes the motion for leave to proceed pseudonymously.
II.
MOTION TO INTERVENE
The Does move for intervention as of right under Federal Rule of Civil Procedure 24(a)
and, in the alternative, for permissive intervention under Federal Rule of Civil Procedure 24(b).
A. Rule 24(a) Intervention
Federal Rule of Civil Procedure 24(a) entitles a party, on timely motion, to intervene as
of right who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) 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.
A court must grant intervention as of right if a prospective intervenor shows that: (1) her
motion is timely;2 (2) she maintains a substantial legal interest in the subject matter of the case;
(3) her interest may be impaired in her absence; and (4) the existing parties cannot adequately
protect her interest. Coal. to Def. Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th Cir.
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Plaintiff appears to concede that the motion to intervene is timely, and given that it was filed
within a few weeks of the commencement of the action, before the start of discovery, and before
the briefing on the motion for preliminary injunction hearing is complete, the Court agrees. See
Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (finding timeliness element
satisfied where the intervention motion was filed two weeks after the complaint and no party
argued untimeliness).
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2007); Grutter v. Bollinger, 188 F.3d 394, 397-98 (6th Cir. 1999). Judicial economy favors the
disposition of related issues and claims in a single suit. See Jansen v. City of Cincinnati, 904
F.2d 336, 339-340 (6th Cir. 1990). As such, Rule 24 should be construed in favor of
intervention. See Providence Baptist Church v. Hillandale Comm., Ltd., 425 F.3d 309, 315 (6th
Cir. 2005) (noting that the Sixth Circuit subscribes to “a rather expansive notion of the interest
sufficient to invoke intervention of right”). But the Court must balance these considerations
against the public’s and the litigants’ interest in the expedient resolution of claims, which
militates against measures such as the joinder of intervenors that increase the complexity and
cost of a suit. See Jansen, 904 F.2d at 339-40.
Asserting that her “daily reality at Highland Elementary is a gauntlet of humiliation and
harassment,” Jane moves to intervene in this action in order to protect her interest in challenging
the School District’s bathroom policy and differential treatment of her compared to other girls.
(Doc. 15 at 2, 7.) Plaintiff urges the Court to view Jane’s interest in this case as two separate
interests based on two types of claims—her Title IX claims, on which they assert she lacks the
grounds to intervene because Defendants can adequately represent her interests, and her
constitutional claims, on which they likewise ask the Court to deny intervention because Jane’s
constitutional interests will not be impaired absent intervention. (Doc. 24 at 6-7.)
Defendants’ framing of the intervention-as-of-right standard misses the mark. In ruling
on Rule 24(a) motions, courts generally analyze the interests of the proposed intervenor, not the
proposed intervenor’s causes of action. See Jones v. Prince George’s Cnty., Md., 348 F.3d 1014,
1018 (D.C. Cir. 2003) (“As the Rule’s plain text indicates, intervenors of right need only an
‘interest’ in the litigation—not a ‘cause of action’ or ‘permission to sue.’”); Grutter, 188 F.3d at
399 (rejecting the notion that an intervenor does not have a “significant legal interest” absent a
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“legally enforceable right”). Here, Jane asserts multiple causes of action to vindicate her single
interest in being treated in a non-discriminatory manner by her school. See Bradley v. Milliken,
828 F.2d 1186, 1192 (6th Cir. 1987) (granting students’ motion to intervene in a desegregation
case and acknowledging that students and their parents have “a sufficient interest in eliminating
segregation in the schools to satisfy” the Rule 24(a) interest requirement). Given the Sixth
Circuit’s “expansive notion of the interest sufficient to invoke intervention of right,” the Court
finds that Jane and her guardians have a substantial legal interest in this proceeding and easily
satisfy this element of the intervention-as-of-right standard. Miller, 103 F.3d at 1245. Jane has a
far more compelling interest in the disposition of this case than any number of potential
intervenors in other cases whose injuries were “clearly indirect.” See, e.g., Meyer Goldberg, Inc.
of Lorain v. Goldberg, 717 F.2d 290, 294 (6th Cir. 1983).
Jane next argues that the denial of her motion to intervene would impair her interest
because if the Court grants relief to Plaintiff, OCR would be unable to take action to redress what
the Does characterize as Plaintiff’s ongoing violation of Jane’s rights under Title IX. To satisfy
this element of the intervention test, the Does need only show that impairment of their substantial
legal interest is “possible” if intervention is denied. Miller, 103 F.3d at 1247. The Sixth Circuit
has characterized this burden as “minimal.” Id. Although Plaintiff does not contest that Jane’s
legal interest under Title IX would be impaired if the Court granted relief to Plaintiff, the School
District contends that her interest in her constitutional claims would not be impaired because
such claims are not before the Court in this case and she could litigate those claims in a separate
proceeding. (Doc. 24 at 1.) But this argument is misplaced for two reasons. First, even though a
judgment on the Title IX claim in this suit would not be preclusive of Jane’s constitutional
claims in future separate litigation, a showing of preclusion is not required for a finding of
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impairment. See Ne. Ohio Coal. For Homeless and Serv. Emps. Int’l Union, Local 1199 v.
Blackwell, 467 F.3d 999, 1007-08 (6th Cir. 2006) (finding that an “adverse ruling could hinder
the [proposed intervenor’s] ability to litigate the validity of the [law at issue] and acknowledging
that “potential stare decisis effects can be a sufficient basis for finding an impairment of
interest”) Here, an adverse ruling to Defendants could have a detrimental effect not only on
Jane’s Title IX claims, as Plaintiff admits, but also on her constitutional claims because the
Court’s ruling on the Title IX claims in this lawsuit could influence ruling on subsequent
constitutional challenges, even if not squarely controlling them. Second, given that Plaintiff has
filed, and Jane intends to file, a motion for preliminary injunction, the Court finds that the “timesensitive nature” of this case is a “factor in [the] intervention analysis.” Id. at 1008 (citing Ams.
United for Separation of Church and State v. City of Grand Rapids, 922 F.2d 303, 306 (6th Cir.
1990)). The Court finds that the impairment of the Does’ interest is, at the very least, possible if
Plaintiff prevails in this litigation.
Finally, the Does have shown that their interests would not be adequately represented by
existing parties in this suit. Both Plaintiff and Defendants argue that Defendants are able to
represent Jane more than adequately in their defense of the Title IX claim, and the Does admit as
much. (Doc. 15 at 8.) But the Does also contend, and Defendants do not dispute, that they will
not advance the related claims Jane wishes to pursue nor all of the remedies she seeks. (Id.; Doc.
25 at 1.) A proposed intervenor’s burden on this element is minimal because she need only show
“that there is a potential for inadequate representation.” Grutter, 188 F.3d at 400-01. It “may be
enough to show that the existing party who purports to seek the same outcome will not make all
of the prospective intervenor’s arguments.” Id. (quoting Miller, 103 F.3d at 1247). Moreover, as
the Does point out in their reply brief, Jane seeks “damages on her Title IX claim and injunctive
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relief that is specific to her circumstances.” (Doc. 26 at 6.) Defendants have not argued that
they can adequately represent those interests. (See Doc. 25 at 1.) See Ne. Ohio Coal. For
Homeless, 467 F.3d at 1008 (rejecting plaintiffs’ argument that the Secretary of State of Ohio
could adequately represent the Attorney General because they did not have “the same ultimate
objective” given that the Secretary’s primary interest is in ensuring the smooth administration of
elections and the state’s interest was in defending the validity of Ohio laws). Cf. Students and
Parents for Privacy v. United States Dep’t of Educ., No. 16 C 4945, 2016 WL 3269001, at *2
(N.D. Ill. June 15, 2016) (finding that proposed intervenors, transgender students who did not
seek to advance any additional constitutional claims, did not satisfy the fourth prong of the Rule
24(a) test because the federal government could adequately represent their interests in defending
against a Title IX claim).
Because the Does have advanced a compelling argument that Defendants will not
advance Jane’s interests as to her constitutional claims and the injunctive relief and damages she
seeks, the Court finds that the fourth element of the intervention-as-of-right test is satisfied. The
Court GRANTS the motion to intervene under Rule 24(a).
B. Rule 24(b) Intervention
Additionally, the Court has discretion under Federal Rule of Civil Procedure 24(b) to
permit intervention. Rule 24(b)(1) provides that on timely motion, a court may permit anyone to
intervene who:
(A) is given a conditional right to intervene by a federal statute; or
(B) has a claim or defense that shares with the main action a common question of law or
fact.
Permissive intervention is improper when it would cause undue delay or prejudice to the original
parties. Fed. R. Civ. P. 24(b)(3). The decision to grant a Rule 24(b) motion for permissive
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intervention is committed to the sound discretion of the district court. Sec’y of Dep’t of Labor v.
King, 775 F.2d 666, 668 (6th Cir. 1985).
Although the Court has already granted the motion under Rule 24(a), the Court also finds
that, in the alternative, permissive intervention is appropriate here. Jane’s claims undoubtedly
share common legal and factual questions with Plaintiff’s claims in this case. Moreover, Jane’s
intervention in this suit promotes judicial economy. It would be inefficient for the parties to
litigate, and the Court to adjudicate, Jane’s claims in a separate action since both actions would
involve many of the same facts and legal issues.
Plaintiff argues that permissive intervention is unwarranted because the Does would
introduce “fact-intensive claims,” including disputes about Jane’s medical records, into a case
that presents pure questions of law. (Doc. 24 at 9.) But in a similar case in the Northern District
of Illinois where a group of transgender students moved to intervene in a suit by a parent
organization against the United States Department of Education seeking enjoinment of the same
Title IX provisions at issue here, a court permitted the students to intervene under Rule 24(b),
finding that the students “easily satisfy th[e] standard” of Rule 24(b). Students and Parents for
Privacy, 2016 WL 3269001, at *3. The court found no prejudice to the existing parties in the
suit, rejecting essentially the same argument that Plaintiff makes here, that intervention would
“dramatically change the focus of th[e] case” because the movants would “undoubtedly begin
submitting reports from psychologists, therapists and doctors for [the movants] describing the
various treatments they receive for gender dysphoria,” which would necessitate additional
discovery. Id. The court noted that even if the plaintiff were correct on this point,
“[i]ntervention may make this case more complex, but not unnecessarily complex,” and any
increase in complexity was outweighed by the benefits to judicial economy of warding off
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additional suits and addressing the relevant issues with finality. Id. Here, too, the Court
concludes that intervention would not unduly prejudice Plaintiff and would allow disposition of
the case in the most efficient manner.
Therefore, in the alternative, the Court GRANTS the Does’ motion to intervene under
Rule 24(b).
III.
MOTION TO PROCEED PSEUDONYMOUSLY
Movants ask the Court for leave to proceed pseudonymously due to the “highly sensitive
and private nature of the facts involved, the psychological harm [Jane] would experience if those
highly sensitive facts were made public, as well as the risk of retaliation she and her family face
if her identity is made public. (Doc. 16 at 1-2.) Neither Plaintiff nor Defendants take any
position on the motion but because some courts have found that a granting of an unopposed
motion to litigate anonymously without an accompanying explanation is improper, the Court will
set forth its reasons for granting the motion. See, e.g., Doe v. Smith, 429 F.3d 706, 710 (7th Cir.
2005); Doe v. Blue Cross & Blue Shield United of Wisc., 112 F.3d 869, 872 (7th Cir. 1997).
As a general matter, litigating under a pseudonym is disfavored, see Fed. R. Civ. P. 10(a),
but under Federal Rule of Civil Procedure 5.2(a), unless a court orders otherwise, a filing that
contains “the name of an individual known to be a minor . . . may include only” the minor’s
initials. In this case, because a filing with Jane’s initials and her legal guardians’ full names
would make her easily identifiable, Jane and her legal guardians ask the Court for the added
privacy of proceeding pseudonymously.
The decision to grant such a motion is within the sound discretion of the district court.
Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004). The Sixth Circuit has cited the following four
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factors that trial courts must weigh to determine whether to grant a motion to proceed
pseudonymously:
(1) whether the plaintiffs seeking anonymity are suing to challenge governmental
activity; (2) whether prosecution of the suit will compel the plaintiffs to disclose
information “of the utmost intimacy”; (3) whether the litigation compels plaintiffs to
disclose an intention to violate the law, thereby risking criminal prosecution; and (4)
whether the plaintiffs are children.
Id. (quoting Doe v. Stegall, 653 F.2d 180, 185-86 (5th Cir. 1981)). All factors but the third
weigh in favor of granting the Does’ motion.
It is undisputed that Jane is a minor and that in intervening in this the suit she seeks to
challenge a policy of the School District, a governmental entity. Children are especially entitled
to privacy particularly when they have previously recounted retaliation or harassment. Doe ex
rel. Doe v. Elmbrook Sch. Dist., 658 F.3d 710, 723-24 (7th Cir. 2011), reh’g en banc granted
and vacated but analysis adopted in relevant part by 687 F.3d 840 (7th Cir. 2012).
Additionally, many courts have found Jane’s circumstances to be the kind in which a
plaintiff would be required to disclose information “of the utmost intimacy” throughout the
course of litigation. One court recently allowed a transgender minor to proceed
pseudonymously. See Doe v. United States, 16-CV-0640, 2016 WL 3476313, at *1 (S.D. Ill.
June 27, 2016). In addition, some courts have allowed non-minor transgender plaintiffs to
proceed anonymously due to the social stigma associated with their gender identity. See, e.g.,
Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992); Doe v. Blue Cross & Blue Shield of R.I., 794
F. Supp. 72, 72-73 (D.R.I. 1992). Courts have also allowed minors with sensitive mental health
histories to proceed anonymously. See Mich. Prot. & Advocacy Serv., Inc. v. Caruso, No. 5:05cv-128, 2006 WL 958496, at *2 (W.D. Mich. Apr. 10, 2006).
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Finding compelling reasons to protect Jane’s privacy and shield her from discrimination
and harassment, and no apparent prejudice to the other parties in this suit,3 the Court GRANTS
the Does’ Motion to Proceed Pseudonymously.
IV.
STATE OF OHIO’S MOTION TO FILE AN AMICUS BRIEF
The State of Ohio seeks to file an amicus curiae brief in support of the School District’s
motion for preliminary injunction. (Doc. 11.) Leave to participate as amicus curiae is a
“privilege within the sound discretion of the courts.” United States v. Michigan, 940 F.2d 143,
165 (6th Cir. 1991) (internal quotation marks and citation omitted). Courts considering whether
to accept the submission of an amicus curiae brief consider whether the information offered by
the amicus “is timely, useful, or otherwise necessary to the administration of justice.” Id.
Granting leave to appear as an amicus is appropriate when a party has “an important interest and
a valuable perspective on the issues presented.” United States v. City of Columbus, No. 2:99-cv1097, 2000 WL 1745293, at *1 (S.D. Ohio Nov. 20, 2000) (quotation marks and citations
omitted).
The State of Ohio asserts that it has a strong interest in the operation of local public
schools in Ohio. (Doc. 11 at 2.) None of the parties opposes the State’s motion. Agreeing that
the state has an interest in the proceedings, the Court GRANTS the Motion for Leave to File an
Amicus Curiae Brief.
V.
CONCLUSION
For the foregoing reasons, the Court GRANTS the Motion to Intervene (Doc. 15);
GRANTS the Motion to Proceed Pseudonymously (Doc. 16); and GRANTS the Motion for
3
There is no question that the parties in this suit already know Jane’s true identity—Plaintiff
because she is a student in the School District and Defendants because she filed a complaint with
OCR before this litigation commenced.
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Leave to File an Amicus Curiae Brief (Doc. 11). All Parties are DIRECTED to FILE UNDER
SEAL or REDACT any documents that identify Jane, Joyce, or John Doe.
IT IS SO ORDERED.
s/ Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: August 15, 2016
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