The Supreme Court's decision to uphold injunctions on the Biden administration's latest education regulations in 10 states and hundreds of schools and university campuses nationwide leaves transgender, pregnant and harassed students without crucial civil rights protections as the new school year approaches, experts told Salon.
This year, more than two dozen Republican attorneys general and a half dozen advocacy groups filed lawsuits seeking to block the rollout of new Department of Education regulations. Advocacy groups that joined the lawsuits include Moms for Liberty, Young America’s Foundation, Parents Defending Education, Independent Women’s Network, Female Athletes United and Speech First, Inc.
Those rules lay out how the government enforces Title IX, the 1972 federal civil rights law banning sex discrimination in educational settings that receive federal funding.
The lawsuits claimed the Biden administration is trying to impose a "radical" "gender ideology" in schools nationwide with federal regulations that redefine sex discrimination to include gender identity and formally broaden the definition of hostile environment harassment.
Boston College political science professor R. Shep Melnick said Republican groups, conservative groups and state attorney generals acted in apparent speedy coordination to challenge the laws.
“Twenty-six Republican state attorneys general, they were all ready to go,’ Melnick said. “They picked the courts they thought would be most favorable.”
All the Republican attorneys general who have sued over Title IX are members of the national Republican Attorneys General Association – a group that’s made fighting Title IX a top priority.
At a June RAGA summer conference in West Virginia, speakers on a panel concerning Supreme Court litigation discussed how litigation against Title IX regulations “will continue to be a major area of focus for RAGA.”
Top donors to the Republican AGs nonprofit include organizations linked to conservative legal activist Leonard Leo, according to Salon’s analysis of IRS disclosures maintained by ProPublica.
Such disclosures show RAGA has received at least $22 million from the Concord Fund – a dark money group led by a former clerk for Justice Clarence Thomas and linked to Leo.
Legal experts said the Supreme Court’s decision clashes with a 2020 Supreme Court 6-3 ruling – authored by Justice Neil Gorsuch – prohibiting employers from discriminating on the basis of sexual orientation or transgender status.
School children need “more protection, not fewer protection than people in employment from sex discrimination,” said University of South Carolina School of Law Emily Suski.
“It's not like sexual harassment or sexual assault, or any of the any of the things Title IX seeks to address is going to stop happening, right?” Suski told Salon. “So now what? What do they do when it happens this year?”
This year, lower courts issued injunctions that prevented the federal government from enforcing the entirety of the new Title IX rules not only in states that had sued — but also at hundreds of schools, colleges and universities in states including Massachusetts and California.
The Supreme Court last week issued a 5-4 order that denied the Biden administration's request to keep the rest of the regulations in place in 10 of the states while the legal battle plays out.
Gorsuch dissented from the order.
Overall, Republican attorneys general have won seven injunctions halting the regulations in 26 states.
University of Wisconsin-Madison School of Education professor Suzanne Eckes said because the Supreme Court’s order covers 10 of those states, the remaining states are facing complicated legal questions.
"It's a really confusing patchwork right now," said University of Wisconsin-Madison School of Education professor Suzanne Eckes.”It's just causing a lot of confusion, I would say, across the country, whether you follow the new Biden administration rules in its interpretation of Title IX or not.”
She added: “Some states that have clear litigation, it's a little more straightforward for school administrators.”
Specifically, opponents are criticizing a regulation that redefines sex discrimination to “includ[e] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
The second regulation at issue prohibits schools from preventing a person from participating in an “education program or activity consistent with the person’s gender identity.”
Northeastern School of Law professor Martha Davis said the regulations provide crucial protection for children with different gender identities and sexual orientations.
“We know that schools’ failure to really treat people with dignity and so on, leads to higher levels of suicide,” Davis said. “The injunctions generally have the impact of allowing schools to perpetuate measures that strip people of dignity.”
The lawsuits also target a regulation redefining hostile environment harassment to include offensive and unwelcome sex-based conduct that is severe or pervasive – a looser definition than the previous regulation that required the conduct to be both severe and pervasive.
Davis said the “severe or pervasive” standard conforms federal regulation to developing case law.
The Republican AGs and conservative groups argued that the expanded definition violates First Amendment rights by chilling speech on issues including gender identity.
The new Biden Title IX regulations included a swath of other provisions: providing access to lactation spaces for pregnant students, prohibiting schools from asking about job applicants’ marital status, protecting students from retaliation for filing Title IX complaints and outlining when a student can receive a live Title IX hearing with cross-examination.
Davis said those rules provide urgent protection for students.
“Pregnant and parenting students often experience discrimination or are excluded from classes and not given the kind of access to resources that they need,” Davis said. “And so now schools are not legally required to provide those kinds of accommodations under the regulations because the regulations have been stayed.”
Eckes said that the Supreme Court should have agreed with the government’s request to limit the injunctions to the three contested provisions.
“There was no reason to block the entire rule, because what they're really attacking in most of these lawsuits is focusing on transgender students really,” Eckes said. “They weren't attacking the pregnant and parenting student section of law. They weren't necessarily, or at least across the board, attacking the changes around the standard for investigating sexual harassment in universities in K 12 schools. So why not let those parts of the new rule stand?”
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Davis noted that the Republican AGs and conservative groups argued “maintaining this broad injunction was defensible because to impose these rules on schools at the last minute would cause great expense and so on.”
But Davis pointed out that the regulations were promulgated months ago – and she said it’s unlikely that the Department of Education would have started to immediately scrutinize schools..
“There'd be a period of time where schools can show good faith in bringing their standards up to the level of the regulations,” Davis said.
Lastly, Davis said – schools knowingly enter into a “bargain” with the federal government when they accept federal funds.
Davis said the legal campaign against the Title IX regulations are the latest example of a win for advocacy groups vying to get on the Supreme Court’s so-called shadow docket: cases where the Supreme Court decides whether to issue relief for applicants who face irreparable harm.
“The rulings that they make through the shadow docket have the force of the rule of law, even though they're being sort of issued without the benefit of full briefing or argument on a very expedited basis,” Davis said. “There may be some circumstances where there are real harms that need to be dealt with on an emergency basis by the Supreme Court. But the shadow docket has really expanded to the point where many of the cases are not ones that really raise that kind of emergency where there's a life or death kind of situation, or some kind of real, physical harm.”
Davis said continued concern over the political issue of school bathrooms appears to be a motivating force behind the lawsuits.
“So many school districts seem to be concerned that people would not be able to be barred from using a bathroom that reflects their gender identity, for example, or schools would have to provide non gender identified bathrooms, which you know is a common thing,” Davis said. “So that, I think, is the main thing that the challengers are concerned about is the mandate that they stop discriminating on the basis of sexual orientation and gender identity.“
Eckes said her research suggests that the vast majority of legal cases have ended in “a favorable result for trans students.”
For example, the Supreme Court in 2021 refused to hear a case where the Fourth Circuit Court of Appeals had ruled in favor of a transgender boy forced to use the girls’ restroom at a Virginia high school.
“The vast, vast majority of cases in courts, conservative judges, liberal judges, didn't matter who the appointee was, were siding in favor of trans students under Title IX and or the Equal Protection Clause of the 14th Amendment,” Eckes said. “Because it seems a natural extension if you're going to prohibit discrimination on the basis of sex, that would include sexual orientation and gender identity. So we almost had this general trend that was seeming to develop across the country, although I’ll concede, there are plenty of circuits that haven't addressed the issue at all, and the US Supreme Court hasn't addressed the issue at all.”
Eckes said cisgender students who have claimed that having to share a bathroom with a trans student violates their privacy rights have often not been successful in such lawsuits.
“You take those cases with the trans access cases, it's like they're creating an issue,” Eckes said.
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Eckes said research shows that trans students who can’t access a bathroom that aligns with their gender identities end up not going at all.
“They don't go to the bathroom all day,” she said. “They hold it all day. This creates medical conditions. It creates high levels of anxiety.”
The Supreme Court’s two-and-a-quarter page majority ruling upholding the broad injunction on Title IX regulations didn’t provide much insight into the justices’ thinking, Davis noted.
The order said the government failed to convince the court that the lower court was wrong to find the three provisions “are intertwined with and affect other provisions of the rule.”
“Nor has the Government adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect,” reads the ruling.
A nine-page dissent authored by Justice Sonia Sotomayor outlined why the injunction should have instead been narrowed.
“By blocking the Government from enforcing scores of regulations that respondents never challenged and that bear no apparent relationship to respondents’ alleged injuries, the lower courts went beyond their authority to remedy the discrete harms alleged here,” reads the dissent.
Sotomayor said the 5-4 ruling “needlessly impairs the Government from enforcing Title IX and deprives potential claimants of protections against forms of sex discrimination not at issue in respondents’ suit.”
Melnick said the injunctions leave schools and campuses in a bind.
“There are so many people, so many courts, agencies, administrators, involved in all of this, it really puts the schools in a terrible bind, because rules keep changing,” Melnick said. “They were supposed to adopt the rules by August 1. Now that's been stayed. If Trump wins the election, God help us, then they'll be revised again. So the amount of uncertainty schools have to face is really tremendous.”
Still, Eckes said she argues schools are still free to adopt the Biden administration’s new Title IX regulations.
“Even if you are in one of those states, you can still create inclusive policies where you welcome students and create a climate of inclusivity rather than fear,” Eckes said.
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