Cases & Developments

Memorandum Ruling granting Plaintiffs’ Motions for Preliminary Injunction. The States of Louisiana, Mississippi, Montana, and Idaho, sued the U.S. Department of Education and sought preliminary injunction of the Department’s new Title IX Final Rule, asserting violations of the Administrative Procedure Act (APA), the First Amendment, and the Spending Clause. In finding the Final Rule is contrary to law, the court first held that Bostock v. Clayton County does not extend beyond Title VII to reach Title IX, noting the split among the courts and lack of binding federal jurisprudence on the question. Then, finding “nothing in the text or history of Title IX indicating that the law was meant to apply to anyone other than biological men and/or women,” it found that the Department exceeded its authority by extending the definition of “sex discrimination” to include discrimination based on gender identity, sex stereotypes, sexual orientation, or sex characteristics. It found that the Final Rule’s “severe or pervasive” standard likely violates the First Amendment because it “allows for one political ideology to dominate the educational landscape.” It then found that the Final Rule attempted to decide a “major question” without congressional authorization and violated the Spending Clause because it contains ambiguous provisions and violates constitutional provisions. Finally, it found the Final Rule arbitrary and capricious for inadequately addressing relevant factors or aspects of the problem such as the effect of the expanded definition of harassment on cisgender students. The injunction is limited to the plaintiff States.   

Memorandum Opinion and Order granting Plaintiff’s Motion for Summary Judgment. In June 2021, the U.S. Department of Education issued a Notice of Interpretation, Dear Educator Letter, and Fact Sheet (the “Guidance Documents”), citing the Supreme Court’s decision in Bostock v. Clayton County and interpreting the nondiscrimination protections of Title IX to prohibit discrimination on the basis of gender identity and sexual orientation. The State of Texas sued, seeking vacatur of the Guidance Documents and permanent injunction on their enforcement or implementation. In granting summary judgment in favor of the State and awarding the requested relief, the court first held that the Guidance Documents are contrary to law and exceed the Department’s authority, finding that (1) the statutory text uses “sex” to mean biological sex and “identifies many situations in which differential treatment and separation is permissible;” (2) the Guidance Documents conflict with or undermine provisions of Title IX; and (3) the Department exceeded the clear-statement requirement of the Spending Clause to give the States congressional notice of their obligations and attempted to decide a major question properly left to Congress. It rejected the Department’s application of the underlying reasoning of Bostock to Title IX, noting that “Bostock stated without equivocation that it’s holding only applies to Title VII.” It further held that the Guidance Documents “constitute a substantive rule—rather than interpretive statements—subject to the APA’s notice and comment rulemaking process.”