Re: Legal Risks of Implementing the Biden Administration’s Redefinition of Title IX
October 03, 2024
Dear Superintendent and Members of the School District Board of Education,
The Great Education Initiative, a non-profit student and parental advocacy organization, is writing to inform you of the substantial legal risks your school district faces if it attempts to uphold or institute the Biden Administration’s recent redefinition of the term “sex” within Title IX to include gender identity and sexual orientation. The Federal Title IX protections are different from Michigan’s Elliot Larson Civil Rights Act. Recent legal rulings, particularly from the U.S. Court of Appeals for the Sixth Circuit, highlight potential liabilities and consequences for districts that adopt policies in accordance with the new Title IX guidance. This letter serves as both a cautionary notice and a reminder that adopting the new Title IX policies could lead to immediate legal challenges and potential penalties.
Background on Title IX and Recent Legal Developments
Title IX of the Education Amendments of 1972 prohibits discrimination "on the basis of sex" in education programs and activities receiving federal financial assistance. The Biden Administration's recent guidance, among other changes, purports to expand the definition of "sex" under Title IX to include gender identity and sexual orientation. This expansion has been legally challenged by several organizations and a majority of the fifty states, which argued that the new rule constitutes a significant overreach of executive authority and violates the Administrative Procedure Act (APA). The new Title IX rule has been preliminarily enjoined in twenty-six states and in schools where members of various organizations have children enrolled. It is likely courts will hear the merits of those cases and issue permanent injunctions that will ultimately discard the new Title IX rule and redefinition. You should be aware of several key cases.
State of Tennessee, et al. v. U.S. Department of Education, et al.
Before the new Title IX Rule was promulgated, a coalition of 20 states, led by Tennessee, challenged the Department of Education (DOE) and Equal Employment Opportunity Commission (EEOC) for issuing guidance that extended Title IX and Title VII protections to include gender identity and sexual orientation. In State of Tennessee, et al. v. U.S. Department of Education, et al., No. 3:21-cv-00308 (E.D. Tenn.), filed in August 2021, a The plaintiffs argued that this guidance imposed new obligations on states and local entities without following the notice-and-comment rulemaking process required under the APA. The District Court issued a preliminary injunction blocking the enforcement of the DOE and EEOC’s guidance in the 20 states involved in the lawsuit. The court concluded that the plaintiffs were likely to succeed on the merits of their claim that the federal agencies had overstepped their statutory authority.
On June 14, 2024, the U.S. Court of Appeals for the Sixth Circuit upheld the preliminary injunction granted by the District Court. The Sixth Circuit confirmed that the guidance issued by the DOE and EEOC constitutes a "final agency action" that imposed new legal obligations on states without adhering to the APA’s required rulemaking procedures. The court also recognized that this guidance contradicted existing federal and state laws that maintain sex-based distinctions in areas such as bathrooms, locker rooms, and sports teams.
State of Tennessee et. al. v. Cardona et. al., No. 2:24-cv-0072 (E.D. Ky); No. 24-5588 (6th Cir.); No. 24A79 (U.S.)
In other pending litigation, the the U.S. District Court for the Eastern District of Tennessee issued a preliminary injunction against the new Title IX rule on June 17, 2024, and that injunction was effectively upheld by the U.S. Court of Appeals for the Sixth Circuit when it denied the U.S. Department of Education’s request for a stay in an expedited decision the next month on July 17, 2024, and again, by the United States Supreme Court on August 16, 2024. While that case is ongoing, oral argument on the preliminary injunction is set to be heard in front of the Sixth Circuit on October 30, 2024. GEI expects that injunction against the Title IX rule to hold while the merits are fully decided.
State of Kansas et. al. v. United States Department of Education et. al.,
Similarly, an injunction against the new Title IX rule has been issued in State of Kansas et. al. v. United States Department of Education et. al., No. 24-4041 (U.S.D.C. D. Kan.). Plaintiffs in this case also included plaintiff organizations. There are several organizations that GEI is aware of that have members with children enrolled in Michigan schools for which the U.S. District Court for the District of Kansas has also enjoined the new Title IX rule.
Additional Cases Reinforcing the Injunctions
Other court decisions have similarly blocked or challenged the Biden Administration's attempt to expand Title IX protections:
Arkansas v. U.S. Department of Education, No. 4:24-cv-636 (E.D. Mo.), the court issued a preliminary injunction against the new Title IX rule.
Louisiana v. U.S. Department of Education, No. 3:24-cv-562 (W.D. La.), the court issued a preliminary injunction against the new Title IX rule, which was upheld by the U.S. Court of Appeals for the Fifth Circuit denying a stay of that injunction, and later again by the United States Supreme Court in the same decision as the Tennessee v. Cardona case described above. Litigation to eventually reach the merits continues.
Carroll Independent School District v. United States Department of Education, No. 4:24-cv-461 (N.D. Tex.), the Court issued an injunction against the new Title IX rule. Currently, litigation in that case continues with cross-motions for summary judgment.
In Alabama v. U.S. Secretary of Education, No. 7:24-533 (N.D. Ala.), the U.S. District Court failed to issue a preliminary injunction in favor of the plaintiff states and organizations enjoining the new Title IX rule, but the U.S. Court of Appeals for the Eleventh Circuit speedily corrected the matter and granted the plaintiffs motion for an injunction pending appeal. No. 24-12444 WL 3981994 (11th Cir. Aug. 22, 2024)
All these decisions underscore a broader judicial trend rejecting the Biden Administration's efforts to bypass established legal frameworks in redefining "sex" to encompass gender identity and sexual orientation in Title IX without proper legislative or regulatory processes.
Legal Risks for Your School District
In light of these rulings, your school district faces substantial legal risks if it implements or enforces policies aligned with the Biden Administration’s redefined Title IX guidance. The risks include:
Violation of Court Orders: Implementing policies in conflict with court injunctions could be seen as confirming your violations of federal law, potentially exposing your district to enforcement actions, including injunctions and penalties.
Infringement on Constitutional Rights: Policies compelling speech (e.g., forced use of pronouns) or mandating shared facilities without consideration of biological sex could violate fundamental freedoms, including First Amendment rights to free speech and free exercise of religion.
Exposure to Civil Lawsuits: The Great Education Initiative is actively seeking an injunction specific to Michigan to prevent enforcement of the Biden Administration’s new Title IX rule.
Conclusion
We strongly urge your school district to review its current policies and ensure compliance with both federal law, as well as recent court rulings, especially the Sixth Circuit’s decision. Failure to adhere to these legal standards could lead to significant legal exposure and liability for the district. We are committed to defending the rights of students and parents and ensuring school policies conform to constitutional and statutory protections.
Should you have any questions or wish to discuss this matter further, please contact our legal team.
Sincerely,Elizabeth Nielsen
Associate Attorney
Mohrman, Kaardal & Erickson, P.A.
150 South Fifth Street, Suite 3100
Minneapolis, MN. 55402
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