IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
STEVEN PEDERSEN and CHERYL
PEDERSEN, as Guardians Ad Litem for
MARA PEDERSEN, a minor, and SUZIE
TOLZIN, as Guardian Ad Litem for MICAH
TOLZIN and ELIZABETH TOLZIN, minors,
UNITED STATES OF AMERICA,
SOUTH DAKOTA HIGH SCHOOL
CIVIL ACTION : 00-4113
MEMORANDUM IN SUPPORT OF PLAINTIFFS, UNITED STATES'
MOTION TO INTERVENE AS PLAINTIFF-INTERVENOR
Plaintiffs Mara Pedersen and Micah and Elizabeth Tolzin filed the original complaint in this
lawsuit on June 9, 2000, against the South Dakota High School Activities Association ("SDHSAA" or
"Association"). The plaintiffs allege that they were denied the equal protection of the laws in violation
of the Fourteenth Amendment to the Constitution of the United States and that they were discriminated
against on the basis of sex in violation of Title IX of the Education Amendments of 1972, 20 U.S.C. §§
1681 et seq. Specifically, plaintiffs assert that the Association discriminates against female athletes on
the basis of sex by scheduling girls' volleyball during the nontraditional winter season because it limits,
inter alia, participation and scholarship opportunities.
The United States seeks to intervene in this lawsuit to enforce the Fourteenth Amendment to
the Constitution of the United States and Title IX of the Education Amendments of 1972, to ensure that
recipients of Federal financial assistance do not unlawfully discriminate on the basis of sex. When
recipients do discriminate, the United States has an interest that such conduct be declared unlawful and
enjoined, that appropriate remedies are implemented, and that the victim is made whole. The United
States also has a significant interest in the interpretation and effective enforcement of Title IX. This
interest is particularly important given the few federal court decisions providing guidance in this rapidly-developing area of the law.
II. The United States Should be Granted Intervention as of Right Pursuant to Federal Rule
of Civil Procedure 24(a).
Rule 24(a) of the Federal Rules of Civil Procedure sets out the standards by which parties may
intervene as of right. See Fed. R. Civ. P. 24(a). Rule 24(a) articulates two ways in which a party may
intervene as of right:
Upon timely application, anyone shall be permitted to intervene in an action (1)
when a statute of the United States confers an unconditional right to intervene;
or (2) when the applicant claims an interest relating to the property or
transaction which is the subject of the action and the applicant is so situated that
the disposition of the action may as a practical matter impair or impede the
applicant's ability to protect that interest, unless the applicant's interest is
adequately represented by existing parties.
Fed. R. Civ. P. 24(a). The United States should be granted leave to intervene under either standard.
A. A Statute of the United States Confers an Unconditional Right to Intervene in
42 U.S.C. § 2000h-2 provides that:
Whenever an action has been commenced in any court of the United States
seeking relief from the denial of equal protection of the laws under the
fourteenth amendment to the Constitution on account of race, color, religion,
sex or national origin, the Attorney General for or in the name of the United
States may intervene in such action upon timely application if the Attorney
General certifies that the case is of general public importance. In such action
the United States shall be entitled to the same relief as if it had instituted the
42 U.S.C § 2000h-2; see also Fed. R. Civ. P. 24(a)(1) (codifying that intervention will be granted
"when a statute of the United States confers an unconditional right to intervene"). This statutory
language unambiguously establishes the right of the United States to intervene in this case, in which
Plaintiff has alleged "a denial of equal protection of the laws under the fourteenth amendment." See
Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 431 (1976); Smith v. Board of Educ. of
Morrilton Sch. Dist., 365 F.2d 770 (8th Cir. 1966); see also 7C Wright, Miller & Kane, Federal
Practice & Procedure § 1906 at 244 (2d ed. 1986) (United States has unconditional right to intervene
under Section 2000h-2). Pursuant to 28 C.F.R. § 0.50(a), the Assistant Attorney General for Civil
Rights has certified this case as one of general public importance (Exhibit A), and the United States'
motion to intervene is timely. Under 42 U.S.C. § 2000h-2, the United States is entitled to seek
"thesame relief as if it had instituted the action." 42 U.S.C. § 2000h-2. This statute therefore provides
authority for the United States to intervene and prosecute this case.
Because the Assistant Attorney General for Civil Rights has certified this case as one of general
public importance, the remaining inquiry in determining whether to grant the motion to
intervene is whether the motion has been timely filed. In determining the timeliness of a motion to
intervene, the court is to consider all of the circumstances. See United States v. Union Electric Co., 64
F.3d 1152, 1158-59 (8th Cir. 1995). In particular, the court should focus on
'the reason for any delay by the proposed intervenor in seeking intervention; how far the litigation has progressed before the motion to intervene is filed, and how much prejudice the delay in seeking intervention may cause to
other parties if intervention allowed.' Id.
Consideration of the salient factors demonstrates that the motion is a timely one. The delay in
the United States' filing of the motion to intervene was necessary for the United States to fully and fairly
evaluate the case to ensure that it was one of general public importance and one in which serious and
credible allegations of discrimination were involved. In determining to seek intervention, the United
States requested and reviewed information from both the Plaintiff and the Association. On October 3,
2000, we notified the parties of our authorization to intervene, but we postponed filing the Motion to
Intervene to pursue good faith settlement negotiations with the parties. It is only after those attempts to
reach a negotiated settlement were not successful that the United States has moved to intervene.
Furthermore, this litigation has not progressed to a point where intervention will prejudice the
Defendant: discovery has not yet commenced, trial is nearly four months away, and no dispositive
motions have been submitted to the Court. Finally, there will be no prejudice to the Defendants as a
result of our intervention. We do not seek to relitigate matters that have previously been decided in the
case and we do not propose to add additional counts to the original complaint.
In any event, the Eighth Circuit has made clear, [t]he question for determining the timeliness of
the motion to intervene is whether existing parties may be prejudiced by the delay in moving to
intervene, not whether the intervention itself will cause the nature, duration, or disposition of the lawsuit
to change.' Id. at 1159 (citing Mille Lacs Band of Chippewa Indians v. State of Minnesota, 989 F.2d
994, 998-99 (8th Cir. 1993)). The Association has been on notice of the charges of discrimination
since the filing of the complaint; no prejudice flows from the United States' participating to enforce the
non-discrimination protections of federal law which have previously been identified in the Plaintiff's
complaint. In short, the United States is entitled to intervene as of right because this case involves
allegations of a violation of equal protection of the laws on the basis of sex; the Attorney General has
certified it as a case of general public importance; and the United States has filed a timely motion.
B. The United States Has An Interest In This Action That Is Not Adequately
Represented By the Existing Parties.
Rule 24(a)(2) of the Federal Rules of Civil Procedure permits intervention as of right if: (1) the
application is timely; (2) the party has a recognized interest in seeking intervention; (3) that interest
might be impaired by the disposition of the litigation; (4) the applicant's interest is not adequately
represented by the existing parties. See Union Electric, 64 F.3d at 1160; Fed. R. Civ. P. 24(a)(2).
Rule 24 is construed "liberally" and, in the Eighth Circuit, all doubts are resolved 'in favor of the
proposed intervenors.' Id. at 1158.
1. Interest and Impairment of Interest
The United States has a significant interest in enforcing the dictates of the Constitution and in
seeing that recipients of federal funds do not unlawfully discriminate. In situations where discrimination
has occurred, the United States has a significant interest in ensuring that such conduct is declared
unlawful and enjoined and that appropriate remedies are implemented to prevent like discrimination in
the future for all students, not just the Plaintiffs. Non-traditional playing seasons for female student-athletes is an emerging area of the law; the United States can be helpful in ensuring that legal standards
are developed and applied in accordance with Title IX and the Constitution. Alston v. Virginia High
School League, No. 97-0095-C (W.D. Va.)(jury verdict in favor of plaintiffs on Title IX and Equal
Protection claims based on non-traditional playing seasons); Communities for Equity v. Michigan High
School Athletic Ass'n, No. 1:98-CV-479 (W.D. Mich.)(case involving Title IX and Equal Protection
claims based in part on non-traditional seasons and in which United States has been granted "litigating amicus" role); see also Ries v. Montana High Sch. Ass'n, No. 9904008792 (Mont. Dept. of Labor &
Industry) (administrative finding that association's policy of requiring female student-athletes to play in
non-traditional seasons violated state constitution's equal protection clause).
As the sole governmental enforcer of Title IX in the federal courts, the interests of the United
States may be affected by the resolution of this litigation. Moreover, rulings of law made on the factual
record in this case may have an impact on subsequent enforcement actions. '[I]n appropriate
circumstances . . . stare decisis may supply the requisite practical impairment warranting intervention of
right.' Smith v. Pangilinan, 651 F.2d 1320, 1324, 1325 (9th Cir. 1981). As the Ninth Circuit noted in
granting intervention as of right in a case involving a mental health facility:
This litigation, which directly involves the conditions at the applicants' institution,
must necessarily result in factual and legal determinations concerning the nature
of the conditions. Such determinations when upheld by an appellate ruling will
have persuasive stare decisis effect in any parallel or subsequent litigation. We
have said that such a stare decisis effect is an important consideration in
determining the extent to which an applicant's interest may be impaired.
United States v. Oregon, 839 F.2d 635, 638 (9th Cir. 1988). Moreover, the United States represents
the interests of the public generally, whereas Plaintiffs represent only their own interests. The United
States has an interest in the effective enforcement of federal civil rights laws and that interest may be
impaired unless the United States is granted intervention in this case.
2. Adequacy of Representation
The final requirement for intervention under Rule 24(a)(2) is that the interest asserted must not
be adequately represented by the existing parties. Union Electric, 64 F.3d at 1168. To satisfy this test,
the proposed intervenor 'need only carry a 'minimal' burden of showing that their interests are
inadequately represented by the existing parties.' Mille Lacs Band of Chippewa, 989 F.2d at 999
(quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)).
The United States seeks to intervene, in part, to ensure that the Association takes remedial
action to ensure that no like discrimination occurs in the future. In contrast, the private Plaintiffs seek
relief on their own behalf. The United States has a unique interest in enforcing federal law which is an
interest that only it can adequately represent. See generally SEC v. United States Realty & Imp. Co.,
310 U.S. 434, 459, 460 (1941). Therefore, the interests of the United States are not adequately
represented by the existing parties. See Union Electric, 64 F.3d at 1170 (holding that where interests
of existing party and the intervenor are 'disparate, even though directed at a common legal goal, . . .
intervention is appropriate').
III. The United States Should Be Granted Permissive Intervention Pursuant to Rule 24(b).
In the alternative, the United States should be granted permissive intervention. Rule 24(b)
states that permissive intervention is allowed:
when an applicant's claim or defense and the main action have a question of
law or fact in common . . . In exercising its discretion the court shall consider
whether the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties.
Fed. R. Civ. P. 24(b)(2). Rule 24(b) further provides that when 'a party to an action relies for ground
of claim . . . upon any statute . . . administered by a federal agency, the . . . agency upon timely
application may be permitted to intervene in the action.' Id. This provision was added in 1946 to
avoid "exclusionary constructions" of the United States' right to intervene. See Fed. R. Civ. P. 24,
1946 Advisory Committee Notes. Prior to the adoption of this explicit statutory authority, the Supreme
Court held that the United States may have 'a sufficient interest in the maintenance of its statutory
authority and the performance of its public duties to entitle [it] to intervention.' United States Realty,
310 U.S. at 460.
This case raises important issues concerning the legal standards to be applied in actions
enforcing federal civil rights laws. It is appropriate that the United States participate in such an action to
develop the applicable legal standards.
For the foregoing reasons, the United States' Motion to Intervene should be granted.
BILL LANN LEE
Assistant Attorney General
Deputy Assistant Attorney General
TED L. McBRIDE
United States Attorney
FRANZ R. MARSHALL
SARAH A. DUNNE
U.S. Department of Justice
Civil Rights Division
601 D Street, N.W., Suite 4300
Washington, DC 20530
Chief - Civil Division
United States Attorney's Office
230 Phillips Ave., Suite 600
Sioux Falls, SD 57104
Attorneys for Proposed Plaintiff-Intervenor
1. The standard for determining timeliness and the arguments that this motion is a timely one are
the same as discussed in Section II(A), above.