United States Court of Appeals

For the First Circuit

No. 20-1748

VICTIM RIGHTS LAW CENTER; EQUAL RIGHTS ADVOCATES; LEGAL VOICE; 

CHICAGO ALLIANCE AGAINST SEXUAL EXPLOITATION; JANE DOE, an 

individual by and through her mother and next friend Melissa 

White; ANNE DOE; SOBIA DOE; SUSAN DOE; JILL DOE; NANCY DOE; LISA 

DOE,

Plaintiffs, Appellees,

v.

PHIL ROSENFELT, in his official capacity as Acting Secretary of 

Education,* SUZANNE GOLDBERG, in her official capacity as Acting 

Assistant Secretary for Civil Rights,** UNITED STATES DEPARTMENT 

OF EDUCATION,

Defendants, Appellees.

FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION, INDEPENDENT 

WOMEN'S LAW CENTER, SPEECH FIRST, INC.,

Putative Intervenors, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

* Pursuant to Fed. R. App. P. 43(c)(2), Acting Secretary of 

Education Phil Rosenfelt has been substituted for former 

Secretary of Education Elisabeth DeVos.

** Pursuant to Fed. R. App. P. 43(c)(2), Acting Assistant 

Secretary for Civil Rights Suzanne Goldberg has been substituted 

for former Assistant Secretary for Civil Rights Kenneth Marcus.
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Before

Lynch and Selya, Circuit Judges, 

and Laplante,*** District Judge.

Alexa R. Baltes, with whom Charles J. Cooper, Brian W. Barnes,

Cameron T. Norris, Tiffany H. Bates, Patrick Strawbridge, Cooper 

& Kirk, PLLC, and Consovoy McCarthy PLLC were on brief, for 

appellants.

Michael F. Qian, with whom Natalie A. Fleming Nolen, David A. 

Newman, James R. Sigel, Emily Martin, Neena Chaudhry, Sunu Chandy, 

Shiwali G. Patel, Elizabeth Tang, Diane L. Rosenfeld, and Morrison 

& Foerster LLP were on brief, for appellees.

February 18, 2021

 

*** Of the District of New Hampshire, sitting by designation.
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Laplante, District Judge. The question in this 

interlocutory appeal is whether the district court abused its 

discretion in denying both intervention as of right and permissive 

intervention to the Foundation for Individual Rights in Education, 

Independent Women's Law Center, and Speech First, Inc. 

(collectively, the "movants" or "movant-intervenors") under 

Federal Rule of Civil Procedure 24(a)(2) and (b)(1)(B). 

The suit underlying the appeal involves a challenge to

the U.S. Department of Education's recent promulgation of a 

regulation that sets the standard for actionable sexual harassment 

for administrative enforcement of Title IX of the Education 

Amendments of 1972, 20 U.S.C. § 1681(a), and provides additional 

procedural protections to students accused of sexual harassment. 

The plaintiffs are appellees here defending the district court's 

decision. Acting Secretary Rosenfelt, Acting Assistant Secretary 

Goldberg, and the Department of Education (collectively, "the 

government") are the named defendants in the suit. The government 

has taken no position on the issue of intervention and did not 

participate in either the briefing or the oral argument in this 

appeal.

The Foundation for Individual Rights in Education, 

Independent Women's Law Center, and Speech First, Inc. moved to 

intervene for the purpose of arguing that the First Amendment 

requires a standard for actionable "sexual harassment" that is at 
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least as narrow as the definition provided in the new regulation

and that the Fifth Amendment's Due Process Clause mandates the 

additional procedural protections. The district court denied the 

motion in a summary order, finding that the movant-intervenors had 

failed to show that the government would not adequately protect 

their rights. On appeal, the movant-intervenors contend that the 

district court abused its discretion by denying the motion to 

intervene. We affirm.

I. Applicable Standard of Review

A district court's denial of a motion to intervene as of 

right under Rule 24(a) is reviewed "through an abuse-of-discretion 

lens." T-Mobile Ne. LLC v. Town of Barnstable, 969 F.3d 33, 38 

(1st Cir. 2020). The same "lens" is used for reviewing the denial 

of a motion for permissive intervention under Rule 24(b). Id. 

But "the abuse-of-discretion standard is not a monolith: within 

it, abstract legal rulings are scrutinized de novo, factual 

findings are assayed for clear error, and the degree of deference 

afforded to issues of law application waxes or wanes depending on 

the particular circumstances." Id.

II. Background

The regulation challenged by the plaintiffs is entitled

"Nondiscrimination on the Basis of Sex in Education Programs or 

Activities Receiving Federal Financial Assistance," 85 Fed. Reg.

30,026 (May 19, 2020) (codified at 34 C.F.R. § 106) (the "Rule"). 
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It sets standards for how educational institutions that receive 

federal financial assistance must handle student allegations of 

sexual harassment. As relevant here, the Rule defines the standard 

for "sexual harassment" to be used in administrative enforcement 

of Title IX to be generally the same as the standard set by Davis 

v. Monroe County Board of Education, 526 U.S. 629, 651 (1999), for 

private Title IX suits. See 34 C.F.R. § 106.30(a)(2); 85 Fed. 

Reg. at 30,033 (explaining the reasoning for adopting the Davis

standard). The Rule also requires that schools provide additional 

procedural protections to students accused of sexual harassment. 

85 Fed. Reg. at 30,046-55.

In June 2020, the plaintiffs filed this suit challenging 

various portions of the Rule and its promulgation under the 

Administrative Procedure Act ("APA") and the Fifth Amendment's 

Equal Protection guarantees.1 They seek an injunction declaring 

the Rule invalid and enjoining its implementation.2 The government

1 The plaintiffs' Equal Protection claim is premised on 

allegations that former Secretary of Education DeVos and other 

members of the Department of Education held discriminatory and 

stereotypical beliefs about women and accordingly singled out 

women for excessively onerous procedures and standards in 

establishing sexual harassment.

2 Similar suits about the Rule have proceeded in the Southern 

District of New York, the District of Maryland, and the District 

of Columbia. New York v. U.S. Dep't of Educ., No. 1:20-cv-4260 

(S.D.N.Y); Know Your IX v. DeVos, No. 1:20-cv-1224 (D. Md.); 

Pennsylvania v. DeVos, No. 1:20-cv-1468 (D.D.C.). The movants 

asked to intervene in all three cases. The Southern District of 

New York denied intervention. In the District of Maryland, the 
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has opposed the relief sought by the plaintiffs and has challenged 

the plaintiffs' standing, asserted various APA defenses as to each 

claim, and argued that there was no Equal Protection violation.

The movant-intervenors disagree with the government's 

strategic and policy choice not to argue that the First Amendment 

requires the use of a standard for actionable sexual harassment 

that is at least as narrow as the standard set by Davis and that 

the additional procedural protections for students accused of 

sexual harassment provided by the Rule are required by the Fifth 

Amendment's Due Process Clause. The movant-intervenors thus 

requested intervention for the purpose of presenting those 

constitutional arguments in addition to the government's nonconstitutional defenses. In their motion, the movants argued that 

they were entitled to intervene as of right under Rule 24(a) and 

by the court’s permission under Rule 24(b).

Before either the plaintiffs or the government filed any 

responses or objections, the district court denied the motion to 

intervene in a summary electronic order. The order stated, in 

full:

The motion to intervene is denied as there is 

no adequate showing that the government will 

not adequately protect the proposed 

intervenors['] rights. The Court will, of 

motion to intervene was denied as moot after the case was dismissed 

without prejudice for lack of standing. The District Court for 

the District of Columbia granted permissive intervention.
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course, welcome a brief amicus curiae from the 

proposed intervenors.

This interlocutory appeal followed.3 We held oral argument on 

January 5, 2021.4

III. Discussion

On timely motion, the court must permit anyone 

to intervene who . . . 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). Failure to satisfy any single

requirement for intervention as of right under Rule 24(a) – such 

as showing inadequate representation by existing parties – is 

sufficient grounds to deny a request for "intervention as of 

right." See id.

If the requirements of Rule 24(a)(2) are not met, "[o]n 

timely motion, the court may permit anyone to intervene 

who . . . has a claim or defense that shares with the main action 

3 An order denying a motion to intervene is immediately 

appealable. Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 204 

(1st Cir. 1998). 

4 Between the filing of this appeal and the issuance of this 

opinion, the district court tried the case. The movant-intervenors 

did not file any motion in the district court for leave to file an 

amicus brief raising their legal theory. The district court 

granted every motion for leave to file an amicus brief that was 

presented to it, accepting nine briefs from various amici.
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a common question of law or fact." Fed. R. Civ. P. 24(b)(1)(B). 

Intervention under Rule 24(b) is known as "permissive 

intervention." Id.

The movant-intervenors contend that the district court 

abused its discretion by denying their motion to intervene as of 

right on the ground that the government will adequately represent 

their interests. They also argue that the district court abused 

its discretion by failing to adequately explain its denial of

permissive intervention, preventing this court from conducting a 

meaningful appellate review. The plaintiffs respond that the 

district court correctly reasoned that the government will 

adequately represent the movant-intervenors' interests and that 

this serves as sufficient reason to deny both intervention as of 

right and permissive intervention.

A. Intervention as of Right

In denying the motion to intervene, the district court 

found that the movant-intervenors failed to show that the existing 

defendants, namely, the government, would not adequately represent 

their claimed interests.5 Generally, "an applicant for 

intervention need only make a minimal showing that the 

5 Because we may affirm solely on the ground that the 

government adequately represents whatever interests the movants 

may have in the subject matter of this case, we do not express any 

opinion as to whether the movants have shown that they have an 

interest sufficient to warrant intervention under Rule 24(a).
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representation afforded by existing parties likely will prove 

inadequate." Patch, 136 F.3d at 207. But, in any case, "[a] party 

that seeks to intervene as of right must produce some tangible 

basis to support a claim of purported inadequacy." Id.

Furthermore, "the burden of persuasion is ratcheted 

upward" when the movant seeks to intervene as a defendant alongside 

a government entity. See id. In those circumstances, "this court 

and a number of others start with a rebuttable presumption that 

the government will defend adequately its action[.]" Cotter v. 

Mass. Ass'n of Minority L. Enf't Officers, 219 F.3d 31, 35 (1st 

Cir. 2000). A successful rebuttal "requires 'a strong affirmative 

showing' that the agency (or its members) is not fairly 

representing the applicants' interests." Patch, 136 F.3d at 207

(quoting United States v. Hooker Chems. & Plastics Corp., 749 F.2d 

968, 985 (2d Cir. 1984)).

The movant-intervenors attempt to make that showing by 

identifying their "interests and goals" purportedly not shared by 

the government. They contend that while they want to secure broad

First Amendment and due process rights on college and university 

campuses, the government wants to minimize legal challenges and

maintain regulatory flexibility. The movant-intervenors assert

that these divergent motivations have led them to pursue different 

legal strategies than those pursued by the government. 

Specifically, the movant-intervenors say that the government has 
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failed to make constitutional arguments that they would make, and

they suggest that the government has made an argument (that the 

plaintiffs lack standing) that they would not. Consequently, the 

movant-intervenors contend, the government's representation is 

inadequate.

We reject the movant-intervenors' claim. As explained 

in Massachusetts Food Association v. Massachusetts Alcoholic 

Beverages Control Commission, a movant-intervenors' interest in 

making an additional constitutional argument in defense of 

government action does not render the government's representation 

inadequate. 197 F.3d 560, 567 (1st Cir. 1999) (rejecting movantintervenors' argument that the state's representation was 

inadequate because of their intent to make an argument under the 

Twenty-First Amendment that was not pursued by the state); see 

also T-Mobile Ne., 969 F.3d at 39 ("[T]he presumption that a 

governmental entity defending official acts adequately represents 

the interests of its citizens applies full-bore, given the Town's 

vigorous, no-holds-barred defense of its refusal to grant a 

variance or other regulatory relief to T-Mobile."); Maine v. Dir.,

U.S. Fish & Wildlife Serv., 262 F.3d 13, 19-20 (1st Cir. 2001) 

(rejecting argument that movants were entitled to intervention 

where government could make "several obvious, more direct 

arguments . . . in which the [movant and government had] a common 

interest"); Daggett v. Comm'n on Governmental Ethics & Election 
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Practices, 172 F.3d 104, 112-13 (1st Cir. 1999). Nor is perfect 

identity of motivational interests between the movant-intervenor 

and the government necessary to a finding of adequate 

representation. See Mass. Food Ass'n, 197 F.3d at 567. And the 

government's putative interests in "regulatory flexibility" and 

minimizing future legal challenges do not create a sufficient casespecific conflict to render the district court's denial of 

intervention an abuse of discretion.

For example, in Cotter the court held that the City of 

Boston's defense of its use of racial criteria in promotions for 

law enforcement officers was sufficiently inadequate as to the 

movant minority police officers because the City's interests and 

likely defenses were in conflict with the minority officers'

interests and proposed defense that racial criteria were

appropriate given "alleged deficiencies in its current"

promotional exams. 219 F.3d at 32-33, 35-36 (emphasis omitted). 

Similarly, in Conservation Law Foundation of New England, Inc. v.

Mosbacher, the court held that a state agency's representation of 

movant fishing groups was inadequate when the agency raised no 

defense to the suit and agreed to a settlement that subjected the 

movants to more stringent rules than had previously been in effect. 

966 F.2d 39, 44 (1st Cir. 1992). In contrast, here, the government 

has raised several defenses to the suit that would uphold the Rule,

while the movant-intervenors would only raise extra constitutional
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theories not in conflict with the government's defenses nor

requiring additional evidentiary development.

The movants point to International Paper Co. v. 

Inhabitants of the Town of Jay for the supposition that "the 

adverse impact of stare decisis standing alone may be sufficient 

to satisfy the [practical impairment] requirement." 887 F.2d 338, 

344 (1st Cir. 1989) (alteration in original) (quoting 3B J. Moore, 

Moore’s Federal Practice ¶ 24.07[3], at 24-65 (2d ed. 1987)). From 

this, the movants infer that the district court abused its 

discretion in denying intervention because the judgment they seek

would set precedent on their preferred constitutional theories

while the judgment sought by the government would not. 

International Paper Co. does not render the district court’s 

decision an abuse of discretion, as the government's success in 

defending the Rule would not foreclose the movants from presenting 

their constitutional arguments in a later and appropriate case. 

See id. ("[I]t was not unreasonable for the district court to 

conclude that a refusal to let Maine intervene would not impair or 

impede Maine’s ability to protect its interest in the 

interpretation of its environmental laws.").

Moreover, the movants' proposition that the government's 

avoidance of constitutional issues renders inadequate its 

representation of their interest in having those issues addressed 

is inconsistent with the principle of constitutional avoidance.
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Courts are obliged to avoid rulings on constitutional questions 

when non-constitutional grounds will suffice to resolve an issue. 

Sony BMG Music Ent. v. Tenenbaum, 660 F.3d 487, 511 (1st Cir. 2011) 

(discussing the myriad problems that are likely to arise if a court 

fails to observe the principle of constitutional avoidance and 

vacating district court’s avoidable ruling on constitutional 

issue). Consistent with that principle, the government made a 

strategic and policy choice to defend the Rule's promulgation on 

non-constitutional grounds. The movants' putative interest in 

having certain constitutional issues addressed now rather than 

later does not obviate the principle of constitutional avoidance. 

Indeed, it would be inconsistent with the principle of 

constitutional avoidance to conclude that the district court 

abused its discretion in denying an intervention sought to expedite

a judgment on constitutional questions that could have been avoided 

by limiting the case to the issues as framed by the plaintiffs and 

government. Accordingly, the district court did not abuse its 

discretion in denying intervention as of right. See Fed. R. Civ. 

P. 24(a)(2).6

6 To the extent the movants contend that the district court 

abused its discretion by summarily disposing of the motion for 

intervention as of right, that argument is foreclosed by T-Mobile 

Northeast. 969 F.3d at 38.
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B. Permissive Intervention

The movant-intervenors assert that, even if they are not 

entitled to intervene as of right, the district court should have 

permitted them to intervene under Rule 24(b). They argue that the 

district court failed to adequately explain its reasoning for 

denying the motion to intervene, such that this court cannot 

meaningfully review the order.7

This court's precedents foreclose the movants' position. 

The court may affirm a district court's ruling for any reason 

supported by the record. Miles v. Great N. Ins. Co., 634 F.3d 61, 

65 n.5 (1st Cir. 2011). That holds true even in the context of 

review for abuse of discretion, as this court offers deference to 

the district court's decisionmaking to the extent its "findings or 

reasons can be reasonably inferred." Cotter, 219 F.3d at 34; see 

also Ungar v. Arafat, 634 F.3d 46, 51 (1st Cir. 2011) ("The 

district court denied the motion to intervene in a bench decision. 

It did not subdivide its analysis into discrete silos. 

Nevertheless, its findings and reasoning can easily be inferred 

from the record."). And, to the extent the district court's 

reasons are not stated or cannot be reasonably inferred, "abuse7 The movants also reiterate their belief that the district 

court erred in finding that the government will adequately 

represent their interests, and they contend that the district court 

therefore abused its discretion if it relied on that ground to 

deny permissive intervention.
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of-discretion review simply becomes less deferential because there 

is nothing to which to give deference." See T-Mobile Ne., 969 

F.3d at 38 (internal quotation marks omitted). But even if "the 

district court summarily denies a motion to intervene, the court 

of appeals must review the record as a whole to ascertain whether, 

on the facts at hand, the denial was within the compass of the 

district court's discretion." Id. (affirming summary order 

denying motion to intervene).

T-Mobile Northeast forecloses the movants' suggestion 

that the district court abused its discretion by not adequately 

considering their arguments for permissive intervention or by 

summarily denying the motion. Id. Moreover, to conclude that the 

district court did not abuse its discretion in denying the motion, 

we need not go beyond the express reasons the district court gave 

for denying intervention. Though its order was terse, the district 

court’s reasoning need not be divined: the movant-intervenors did 

not show that the government would not adequately protect their

interests and the amicus procedure provides sufficient opportunity 

for them to present their view.8 That reasoning, which as discussed

8 Of course, a district court should not consider arguments 

raised by amici that go beyond the issues properly raised by the 

parties. E.g., Sindi v. El-Moslimany, 896 F.3d 1, 31 n.12 (1st 

Cir. 2018). And, as we noted, the principle of constitutional 

avoidance requires courts to avoid ruling on constitutional 

questions if the issues can be resolved on non-constitutional 

grounds. Sony BMG Music Ent., 660 F.3d at 511.
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above supports denial of intervention as of right, is also 

sufficient on this record to sustain the district court's 

discretion as to permissive intervention. See id. at 41 ("To 

begin, a district court considering requests for permissive 

intervention should ordinarily give weight to whether the original 

parties to the action adequately represent the interests of the 

putative intervenors."); Mass. Food Ass'n, 197 F.3d at 568 

(affirming denial of motion for permissive intervention when 

"[t]he district court reasonably concluded that the Commonwealth 

was adequately representing the interests of everyone concerned to 

defend the statute and that any variations of legal argument could 

adequately be presented in amicus briefs").

IV. Conclusion

The district court's order denying the Foundation for 

Individual Rights in Education, Independent Women's Law Center, 

and Speech First, Inc.'s motion to intervene is AFFIRMED.