South Dakota High School Activities Ass'n - United States' Motion To Intervene As Plaintiff-Intervenor

The United States hereby moves to intervene in the above-captioned case as a party-plaintiff, pursuant to Rule 24 of the Federal Rules of Civil Procedure, and 42 U.S.C. ｧ 2000h-2.

In support of this motion, the United States submits:

1. The plaintiffs' complaint was filed on June 9, 2000, in the above-captioned case asserting claims under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title IX of the Education Amendments of 1972, 20 U.S.C. ｧ 1681 et seq. (Title IX). Plaintiffs allege that defendant South Dakota High School Athletic Association (hereinafter "SDHSAA" or "the Association") discriminates against female athletes on the basis of sex in scheduling athletic events. Specifically, the Association requires girls to play volleyball in a nontraditional season.

2. Section 2000h-2 of Title 42 provides that the United States may intervene upon a timely application in any action in any court of the United States in which relief is sought from a denial, on account of sex, of equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States, if the Attorney General certifies that the case is of general public importance. In such cases, the United States is "entitled to the same relief as if it had instituted the action." 42 U.S.C. ｧ 2000h-2.

3. Rule 24(a) of the Federal Rules of Civil Procedure provides for intervention as of right when a statute of the United States confers an unconditional right to intervene or when the applicant claims an interest in the subject matter of the action which may be affected. Rule 24(b) provides for permissive intervention when an applicant's claim and the main action have common questions of law or fact.

4. The United States meets the requirements of Rule 24(a) because, inter alia, there is a statute conferring an unconditional right to intervene, and, in addition, the United States has a sufficient interest in the subject matter of the litigation which may be impaired. The requirements for permissive intervention are also met.5. The United States has a strong interest in the proper and effective interpretation and application of the Equal Protection Clause and Title IX, which may be affected by this litigation.

6. Both Plaintiff and the United States claim violations of Title IX and the Fourteenth Amendment, and these claims are based on substantially the same facts.

7. The Attorney General's designee, the Assistant Attorney General for Civil Rights, has certified this case as one of general public importance, and the certificate is attached to the

Complaint-in-Intervention. See 28 C.F.R. ｧ 0.50(a).

8. The United States' proposed intervention is timely. No dispositive motions have been filed with the Court, and discovery will commence shortly. The Court has recently entered a scheduling order setting a January 3, 2001 trial date. On October 3, 2000, the United States informed the parties that the Attorney General had certified this as a case of general public importance, and provided a 10-day period for the parties in which to indicate whether they were interested in engaging in settlement negotiations. In a good faith effort to facilitate a settlement, the United States did not file this motion during this period. Because those attempts to reach a negotiated settlement were not successful, the United States now files this Motion to Intervene.

9. Intervention as of right is sought on the claims of violations of the Fourteenth Amendment to the Constitution and the laws of the United States (Title IX), as set forth more fully in the accompanying memorandum. In the alternative, permissive intervention is sought.
 

Wherefore, the United States requests that this Court allow it to intervene and permit the United States to file the attached Complaint-in-Intervention. A proposed Order is attached hereto.
 

Respectfully Submitted,

______________________________
BILL LANN LEE
Assistant Attorney General

______________________________
HELEN NORTON
Deputy Assistant Attorney General

______________________________
TED L. McBRIDE
United States Attorney

______________________________
FRANZ R. MARSHALL
SARAH A. DUNNE
U.S. Department of Justice
Civil Rights Division
Educational Opportunities
601 D Street, N.W., Suite 4300
Washington, DC 20530
(202) 514-6406

______________________________
BONNIE ULRICH
Chief - Civil Division
United States Attorney's Office
230 Phillips Ave., Suite 600
Sioux Falls, SD 57104
(605) 330-4400
Attorneys for Proposed Plaintiff-Intervenor

October 16, 2000

Upon good cause shown, the United States' Motion to Intervene as Plaintiff-Intervenor is granted.
 

__________________________
LAWRENCE L. PIERSOL
CHIEF JUDGE

I hereby certify that on October 16, 2000, I served copies of the foregoing pleading to counsel of record by first class U.S. mail, postage prepaid, addressed to:
 

John L. Brown, Esq.
Riter Mayer, et al.
P.O. Box 280
Pierre, SD 57501-0280
 

William Fuller, Esq.
Woods Fuller, et al.
P.O. Box 5027
Pierre, SD 57117
 

__________________________
TED L. McBRIDE
United States Attorney >