What do parents, unions, and refugee groups have in common? When they fear that the government isn’t protecting their interests in a lawsuit, they often ask to “intervene” so they can defend their interests themselves.
While intervention has historically enabled all kinds of parties to join ongoing lawsuits, today there is a split between courts that freely allow intervention when the government is a party and courts that do not. If the U.S. Supreme Court accepts an important new case, it will have the chance to resolve this split and establish a uniform and just standard of intervention. On its surface, the court is simply considering the technical question of whether a party faces a higher standard than normal when it wants to intervene alongside the government. But at stake is the future of educational choice, as for decades parents have successfully intervened in lawsuits to protect the right of millions of children to get a quality education.
The petition originated when the Foundation for Individual Rights in Education, a nonprofit organization dedicated to student rights, sought to intervene in a case in which a group sued the Department of Education for strengthening due process protections for students accused of sexual assault. FIRE sought to intervene to make an argument that the government would not: that the protections were not merely consistent with the Constitution, but required by it. But the 1st Circuit held that it could not intervene in the case simply because its interests were already “adequately represented” by the government.
That ruling was wrong when it was decided, and it only looks worse today. As a candidate for president, Joe Biden vowed to bring those due process protections to a “quick end.” Upon taking office, he issued an executive order calling for a review of existing Title IX regulations, including the new rule. Yet despite the obvious hostility of the government to FIRE’s position, FIRE is now dependent on the government to defend its interests in the 1st Circuit.
Stingy, narrow intervention rules don’t just affect organizations such as FIRE. They hurt everyone who has reason to think that the government will not protect their interests in court, including union members, refugee advocates, or parents who want educational choice. Simply put, when the government has different goals than an individual, it will almost always make different arguments — including when both are on the “same” side.
By way of illustration, consider the arguments over an educational choice program in Arizona. In this case, opponents of the program relied on the state’s Blaine Amendment to argue that educational choice was unconstitutional. In response, parents urged the state Supreme Court to confront the anti-Catholic origins of the Blaine Amendment while the government remained silent. When the court issued its ruling, it sided with the parents and found that the amendment was in fact tainted by bigotry.
Similarly, after opponents succeeded in striking down North Carolina’s educational choice program, it was parents, not the government, that sought a stay of the ruling. While both the government and parents appealed the ruling, it was parents who ensured that thousands of children would not be deprived of their scholarships in the middle of a school year. Without the parents’ intervention, their children would have been out of luck.
While these examples derive from disagreements over strategy and tactics, it takes little imagination to see how an intervenor would be leery of government in other contexts as well. Would an environmental group be adequately represented by an administration hostile to climate science? Would a religious organization take comfort that a new president would defend its conscience rights after denigrating those rights on the campaign trail? And more generally, would anyone on the losing side of an unpopular issue rest easy hoping that their elected officials would rather be right than popular?
Intervention is the commonsense idea that two parties in a courtroom don’t get to injure a third party’s rights without their say-so. The government can be an important ally. But government, like allies everywhere, represents itself and its own interests. Because the only way to defend your rights in court is to be in court, the justices should grant FIRE’s petition.
David Hodges is an educational choice attorney at the Institute for Justice. He co-authored an amicus brief in support of FIRE’s petition before the U.S. Supreme Court.
