Litigation Update: Recent Challenges to the New Title IX Regulations

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Welcome to fedsock Forums, a podcast of the Federal Societies
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Practice Groups. I'm ny Kasmerrik, Vice President and Director of
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Practice Groups at the Federal Society. For exclusive access to
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live recordings of FEDSOC Forum programs, become a Federal Society
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member today at fedsoc dot org.
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Well, hello everyone, and welcome to the Schedulist Society Virtual event.
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I'm Caroline Bryant and I'm Associate director of Practice Groups
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with the Federalist Society. Today, we're excited to host this
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litigation update on recent challenges to the new Title nine regulations.
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Our speaker today is Donald Doherty. Don is Senior counsel
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for Litigation at the Defense of Freedom Institute for Policy Studies.
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He previously served as a senior counselor at the Institute
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for Free Speech and the Wisconsin Institute for Law and Liberty.
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Before that, he was a partner at three of Wisconsin's
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largest firms. With nearly thirty years of trial and appellate
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litigation experience. You'd like to learn more about today's speak
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His full bio can be viewed on our website fedsock
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dot org. After our speaker gives his presentation, we will
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turn to you the audience for questions. If you have
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a question, please enter it into the Q and A
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function at the bottom of your zoom window, and we
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will try to get to as many as we can. Finally,
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I'll note that, as always, all expressions of opinion today
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are those of our guest speaker, not the Federalist Society.
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With that, Don thank you so much for joining us,
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and the floor is yours.
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Thanks, Erlyn, appreciate it. Good morning. My name is Don Doherty.
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I'm senior Litigation Council for the Defensive Freedom Institute, and
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I appreciate you all joining me this morning. Today i'd
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like to give a brief overview of the lawsuit that
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are challenging the new Title nine regulations. Those regulations were
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issued this past April. I plan on talking for about
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thirty minutes or so, and after that we'll open it
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up to questions or comments from you all. So, on
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April twenty ninth, the Department of Education published a four
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hundred and twenty three page final rule in the Federal
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Register amending is Title Lining regulations. Title line is a
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federal statute prohibiting sex based discrimination in federally funded education programs.
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And activities, although that statute has certain significant exceptions allowing
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for differential treatment based on biological sects, such as having
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separate living quarters. Most notably and most perhaps infamously in
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the news is that these new Title line rules redefine
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in our estimation. But according to the federal government, they
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merely clarify the statute so that it now includes a
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prohibition on gender identity discrimination. The Department of Education asserts
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that the new rule is consistent with the Supreme Court's
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decision in twenty twenty in Bostock, the Clayton County. Bostock
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held at the prohibition Title seven of the Civil Rights
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Act in nineteen sixty four on employment discrimination because of
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any individual sex included firing an employee merely for being
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gay or transgender, because under Title seven's text, biological sex
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plays a necessary and undisguisable role. In the decision to
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terminate Bostock, as I said a twenty twenty decision written
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by Judge Neil Gorsich, it was six to three. The
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dissenters were Alito, Thomas, and Kavanaugh. On the day as
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President Biden was inaugurated in January of twenty twenty one,
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he directed all federal agencies to revise their rules and
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policies to reflect the Supreme Court's decision and its reasoning
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in Bostock. For the Education Department, this inaugural directive culminated
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in the April publication of the new Title nine rule.
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At bottom, most of the government's justification for the new
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rule or rules, I'll use that sort of it's a
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whole bunch of rules, as I said, four hundred and
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twenty FIO pages of stuff, sometimes referred to plural and
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sometimes singular. But in any event, most of the government's
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justification for these new regulations hangs almost entirely on its
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reading or I think misreading of Bostock. In my opinion,
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you can't extricate Bostocks holding from the title line. Statutory
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context that came out of the case is pretty clear.
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It turns on the specific text of Title seven and
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the case also Stock. The majority opinion talks about how
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it's expressly not deciding other issues before it other than
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the Title seven decision, and it doesn't talk about it's
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not going to pre judge how broadly it's holding in
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that case will sweep Comparing Title seven and boast Stock
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and Title nine which is in the new rules. You
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see that the latter, as I mentioned, expressly does allow
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for different treatment based on biological sex in certain circumstances.
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As I said, there's a living quarters exception statutory section
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that's in Session sixteen eighty seven of Title nine, and
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in the seventy five years after Title nine was enacted,
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the Department of Education itself and the Course all interpreted
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it to allow, for for instance, differential treatment between the
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sexes based on privacy concerns, or safety concerns, or that
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kind of thing, And the new rules run counter to
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all of that. Another important difference I think between Title
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nine and Title seven that would make Bostock and opposite
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is that Title nine was enacted pursued the Congress's authority
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under the spending Clause in Article one Section eight of Constitution.
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Title seven was enacted under the e Commerce clause authority,
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which is broader and more plenary than the spending clause authority.
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Under the spending clause, federal funding that goes out pursued
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to that clause. Cause the Supreme Court has said it's
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analogous to a contractual arrangement between the federal government and
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states or other recipients of the federal funding. And part
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of that contrastal arrangement, as a point of black contract law,
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is that you can't change the terms or conditions of
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this contractual arrangement after the deal has been entered into.
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The leading Supreme Court case on that it's called Penhurst,
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but that's just sort of black letter contract law is
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applied to the spending clause. The new rule would in
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fact change the terms and conditions of the original contract,
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the original deal that states and school districts entered into
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with the federal government, by expanding the scope of sex,
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as well as some other changes we'll talk about. So
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that's another difference between this case and Bostock. There are, however,
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some superficial textual similarities between Title line and Title seven,
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and sometimes, as the shortcut, courts have sort of sun
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strewed them together. And it's not entirely clear what the
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Supreme Court will do if this case or another similar
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one goes up in front of it, whether the court
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will contain Bostock to the Title seven context, or whether,
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as the federal government argues for here and many other places,
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pursue in of the President Biden's inaugural directive that Bostock
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applies many, many, many places outside of merely Title seven.
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As I said, Justice Corsich wrote, Bostock, I mean, really
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kind of what we need is some clarification from him. Really,
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it's a moment of you know, Justice Gorsicic clean up
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an aisle three. We really need him to clean up
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and make clear what Bostock is intended to do and
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how far it's intended to sweep. I think it's clear
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from the face of the decision it doesn't go beyond
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Title seven. But obviously the federal government and others think differently.
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We may get some guidance from a case coming up
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this fall and we argue before the Supreme Court in
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early December. It's called Scremetti. It's a challenge under the
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Equal Protection Clause with the fourteenth Amendment to Tennessee's ban
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on gender treatment for minors. The government federal government also
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relies heavily there on Bostock. So what the Supreme Court
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will do with that case when it hears it after
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it hears it in early December may provide some guidance.
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Of course, equal Protection Clause, which is the claim the
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government is raising in Scrimetti. Is much different from a
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Title nine issues such as we have here in our case.
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So maybe easier to distinguish Bostock from Scremetti and equal
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protection protect equal protection jurisprudence from what we have here,
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so and Title line could be a closer question. But
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as we'll talk about here, we'll see how that goes.
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The new Title nine regulations were set to take effect
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on August first, but as you may know, immediately after
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these regulations issued, roughly ten separate lawsuits challenging them were
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filed in various federal courts by states, school districts, and
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rental rights groups. Specifically, cases were filed in the Western
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District of Louisiana, Eastern District of Kentucky, Northern District of Alabama,
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Kansas District Court, District of Missouri, and several cases were filed,
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of course, to the Northern District of Texas, where conservatives always
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go with good reason. There's been some consolidation of the cases.
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My firm, Defensive Freedom Institute is co counsel with the
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Attorney's General of Louisiana, Mississippi, Montana, and Idaho, and the
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action was brought by those four states, along with seventeen
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the Louisiana School districts in the Western District of Louisiana.
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Ours was the first case filed in the country. We
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filed it early in the morning after the rule became effective,
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but there are a number of other cases filed that
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same day, April twenty ninth. At this point, there's about
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eight cases that have moved forward commotions for preliminary expert
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I had relief and the plaintiffs, including in our case,
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have been uniformly successful. So the new rule is now
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enjoined in most of the country, pending for the proceeding.
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So this success may may be an indication that Bostock
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and its construction of Titles seven are in fact extinguishable
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from the present case and the Title nine. But the
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Supreme Court, of course, will have the last word on
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all of this. Our complaint sets forth five causes of action.
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There's variations on our claims are about in the other cases,
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but largely the same claims appear in all the different complaints.
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Of course, the primary claim really is the rules contrary
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to Section seven oh six of the APA, and the
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Department of Education lacks authority to promulgate it. That's really
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our primary claim. We have two more APA claims, namely
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that the rule is arbitrary and capricious, and that it
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was promulgated without observance of the notice and common procedure
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required by the APA. We finally have two non APA claims.
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One is based on as I mentioned earlier, limits on
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Congress's spending clause authority, arguing, of course, as I said,
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the new rule improperly imposes new conditions when federal funding
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the schools. And the final claim is under Article one's
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vesting clause, namely that the germinations about what constitutes sex
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are now non delegible, or at the least, if they
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are going to be delegated, need to be done so
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with some intelligible principle to guide the agencies, and Title
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nine has no such intelligible principle regarding this issue of
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what means under the statute. There are three main substance
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of legal issues surrounding the new rule and that undergird
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our claims, and they're aimed at different parts of the
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new rules. The first sort of target, I guess of
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our claims is that Session the Secsion one oh six
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ten of the new rule. That's the one that reinterprets
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and reinterprets sex and title line, and we say that
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that reinterpretation is contrary to the text and purpose of
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title line because the regulations expand the statute to include
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the prohibition on discrimination based on gender identity and concepts
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that go beyond biological sex, which was the originally public
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understood meaning of sex under the Statute. The statute title
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line gender id identity, I should say it is clearly
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a vague term. I mean, I'm doing a lot of
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litigation space these days, and the course themselves are unclear
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about the terms. In fact, a nine circuit case not
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regarding the specific issue, but a related transgender issue, it
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put a glossary at the beginning of its opinion because
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they're just not common understanding as to what some of
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these terms mean. And of course in the law you
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need precise definitions in order to be able to talk
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with one another, and I think that's unfortunately sorely lacking
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in this area. Hopefully that's something that is from any case,
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and maybe others will help clarify. But then even the
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government itself doesn't try to term to define what sex is.
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It just says sex includes these things, doesn't attempt to
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define what gender identity means. Instead, it just simply cites
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Bostock and says, look at Bostock, you know enough said,
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which I don't think is sufficient. Also regarding sort of
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relatedly and notoriously, under the new REGs, section one oh
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six point thirty one says that sex separated restrooms, showers
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and locker rooms are now prohibited, which a lot of
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people have a lot of problems, and that's gotten a
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lot of publicity saying that you can't have separate bathrooms,
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et cetera based on biological sex. This rule represents a sharp,
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abrupt departure from Title nines texts, as well as from
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fifty years of judicial and agency interpretation of the statute,
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as well as the agency's own enforcement practice in this area.
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The second main substantive legal issue relates to section one
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oh six point two of the New Regulations, which imposes
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requirements requirements on schools for addressing quote unquote sex based harassment,
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and those are contrary to law. The new requirements, we say,
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including the first mement rights of teachers, students, and others,
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because under one oh six point two of the New Regulations,
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schools are required to police as well as to punish
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miss pronounting, and other protected speech because that can constitute
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sex based harassment according to the new rules. And these
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new rules set forth in one O six to two,
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they're contrary to non first amendments to quam court case
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law regarding school's liability. A schools liability for harassment sexual
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harassment under Title nine is a case called Davis from
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nineteen ninety nine, which is kind of the leading or
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was the leading the case in this area regarding what
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constitutes sexual harassment, and this new rule expands school's exposure
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to liability, increases their obligations to police for offensive speech,
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and does so beyond what Davis had held in nineteen
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ninety nine. The final kind of third target area, somewhat relatedly,
240
00:16:01.720 --> 00:16:07.080
is that the new REGs impose obligations on schools with
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reguard to enforcement of Title nine that will violate the
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due process rights of those accused of discrimination, particularly in
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sexual harassment claims. For example, a single school employee can
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be the investigator, prosecutor, and judge in the discrimination grievance
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process instead of those functions being divided among several individuals,
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which is what you do under common fundamental notions of
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due process. You don't have a single investigator, prosecutor, and judge,
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but these new rules would allow for that. So that's
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kind of the third area. After we file our complaint
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on the day that was published, as I mentioned, April
251
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twenty ninth, and by early May, we had filed the
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motion seeking preliminary relief and stay of the effective date
253
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the August first effect of the regulation in our case
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in the Western District of Louisiana, sixteen Blue states, led
255
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by California and New Jersey and Pennsylvania, filed an amicus
256
00:17:09.440 --> 00:17:12.839
brief and opposition to our motion. I think at this point,
257
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based on states that are plaintiffs and challenges the two
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title line the new tide line rules, as well as
259
00:17:21.920 --> 00:17:24.359
states that have opposed it in amicus briefs like the
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one I mentioned filed by California, New Jersey, Pennsylvania and
261
00:17:28.519 --> 00:17:31.960
other Blue states, I think at this point like forty
262
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two or the fifty states have weighed in on the
263
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rules one way or the other. My own state where
264
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I live, Wisconsin, has been sort of conspicuous by its
265
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abserved by silence. I think, so there's a couple of
266
00:17:45.319 --> 00:17:49.039
states that haven't weighed in pro orcon but they're the
267
00:17:49.039 --> 00:17:54.440
distinct minority of states with regard to the primary injunction
268
00:17:54.559 --> 00:17:59.559
motionally filed on June thirteenth, the motion. That motion was
269
00:17:59.599 --> 00:18:06.400
granted by Judged Terry Doty the Western District Louisiana. Again,
270
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we got the first preliminary in junction motion granted of
271
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all these cases in the country, so that the entire
272
00:18:13.519 --> 00:18:19.359
rule is enjoined at the four states we represent, namely Louisiana, Mississippi, Montana,
273
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and Idaho. Between the grant of the priminary injunction and
274
00:18:24.359 --> 00:18:27.240
our case on June thirteenth and then the end of
275
00:18:27.279 --> 00:18:31.480
this past July, additional pulminary injunctions were granted by federal
276
00:18:31.480 --> 00:18:36.319
courts in the Kansas Eastern District, Kentucky, the Northern District
277
00:18:36.359 --> 00:18:40.319
of Texas, and Eastern District of Missouri. Cases. In fact,
278
00:18:40.359 --> 00:18:44.039
preminary injunctions were granted by every district court where a
279
00:18:44.119 --> 00:18:48.279
motion for one was filed, except the Northern District of Alabama. However,
280
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there there was an appeal the same day that the
281
00:18:53.119 --> 00:18:56.440
motion was denied, an appeal to the Eleventh Circuit, and
282
00:18:56.519 --> 00:18:59.759
that same day the Eleventh Circuit promptly reversed the denial
283
00:19:00.319 --> 00:19:03.599
and put into place an adjunction. So that was the
284
00:19:03.640 --> 00:19:06.880
only court that District Court at Lease that denied the
285
00:19:06.880 --> 00:19:10.759
primary injunction, but it was quickly reversed literally that same
286
00:19:10.839 --> 00:19:17.759
day by Eleventh Circuit. So far, none of the Planmary
287
00:19:17.799 --> 00:19:22.440
injunctions that have been granted have been nationwide injunctions. Relief
288
00:19:22.480 --> 00:19:25.359
has been limited to the plaintiffs in each of the cases.
289
00:19:26.440 --> 00:19:28.480
In total, at this point, I think there are twenty
290
00:19:28.559 --> 00:19:33.200
six cases. There's twenty six states which are covered by injunctions.
291
00:19:33.200 --> 00:19:35.200
Those are the twenty six states that have appeared as
292
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plaintiffs challenging the new rule. In addition, organizations like Moms
293
00:19:41.039 --> 00:19:44.960
for Liberty and the Young America's Foundation they were plaintiffs,
294
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and I believe the Alabama and Kansas actions, so the
295
00:19:49.240 --> 00:19:53.359
injunctions in those cases also covered numerous schools. I think
296
00:19:53.440 --> 00:19:58.039
thousands of schools outside the twenty six states that are
297
00:19:58.079 --> 00:20:01.880
attended by children of memor of Moms for Liberty or
298
00:20:01.920 --> 00:20:04.799
by members of the Young America's Foundation. And that's creating
299
00:20:04.839 --> 00:20:09.640
a bit of a collateral controversy because schools in certain
300
00:20:09.640 --> 00:20:12.200
school districts. For instance, again in Wisconsin where I live,
301
00:20:13.000 --> 00:20:15.559
even though the state is not covered by an injunction
302
00:20:16.200 --> 00:20:19.680
in any of this litigation. There are schools that have
303
00:20:20.640 --> 00:20:24.079
children whose moms are in Moms for Liberty, and they're
304
00:20:24.119 --> 00:20:28.079
saying you can't enforce these tideline regulations in those specific schools,
305
00:20:28.839 --> 00:20:32.799
and there's, as I said, some collateral administrative litigation going
306
00:20:32.839 --> 00:20:38.200
on about that currently. After this round of primary in
307
00:20:38.240 --> 00:20:42.440
junctions was granted, the government sought to partially stay them
308
00:20:43.319 --> 00:20:47.799
in its stay motions, motions which were largely identical in
309
00:20:47.799 --> 00:20:51.559
each of the various courts. The Department of Education agree
310
00:20:51.759 --> 00:20:56.960
to accept priminary accept the priminary injunction of Section one
311
00:20:57.039 --> 00:20:59.319
oh six point thirty one eighty two, which, as I
312
00:20:59.400 --> 00:21:05.559
mentioned earlier, prohibit schools from preventing individuals from accessing certain
313
00:21:05.599 --> 00:21:09.680
sex separated spaces like locker rooms and bathrooms consistent with
314
00:21:09.720 --> 00:21:13.799
their gender. Id So you can't prevent someone who identifies
315
00:21:13.799 --> 00:21:16.559
as a girl and biologically as a boy from going
316
00:21:16.640 --> 00:21:19.599
into the girl's bathroom, basically, but they agreed to accept
317
00:21:19.599 --> 00:21:23.440
that junction. They also agreed to accept, as I mentioned,
318
00:21:23.440 --> 00:21:29.240
the one six point two broad definition of hostile environment harassment,
319
00:21:29.680 --> 00:21:33.599
which again could be chilling free speech. However, the rest
320
00:21:33.720 --> 00:21:38.119
of the relief granted the government sought to stay, including
321
00:21:38.160 --> 00:21:42.079
the redefinition or again, as the government says, mirror clarification
322
00:21:42.839 --> 00:21:44.640
of the scope of the term sex and the one
323
00:21:44.680 --> 00:21:48.759
O six ' ten, besides one O six ten other
324
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provisions that the Department of Education wanted to enforce related
325
00:21:53.079 --> 00:22:00.759
to record keeping, discrimination reporting requirements, accommodations for his students,
326
00:22:00.839 --> 00:22:06.359
and other things. The government's motions to stay the injunction,
327
00:22:06.640 --> 00:22:10.920
at least partially were denied by the district courts, and
328
00:22:10.960 --> 00:22:15.599
the government then filed interlocatory appeals on denials as well
329
00:22:15.640 --> 00:22:21.839
as on the merits of the priminary injunction decisions. These
330
00:22:21.880 --> 00:22:25.440
partial stays appeals, I should say, these partial state appeals
331
00:22:25.480 --> 00:22:29.759
were rejected by the Fifth Circuit, sixth Circuit, and I
332
00:22:29.799 --> 00:22:32.599
think it was the eleventh Circuit in our case. The
333
00:22:32.640 --> 00:22:36.640
government then did appeal from denials of its application for
334
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stays in the fifth and sixth circuits the Supreme Court.
335
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The fifth circuit that it appealed from was our case
336
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from Louisiana, and on August sixteenth, and a three page
337
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per curing decision, all members of the Supreme Court confirmed
338
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that the plaintiffs Louisiana and all the other states are
339
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entitled to the preliminary injunction relief as to the three
340
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provisions of the rule, the three central visions of the
341
00:23:02.599 --> 00:23:06.839
rule that I've been talking about, which portends well for
342
00:23:06.880 --> 00:23:10.480
an ultimate determination all. The Supreme Court said it was
343
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making a decision in an emergency appeal posture based on
344
00:23:15.160 --> 00:23:20.279
a limited record. It also noted that because the Fifth
345
00:23:20.279 --> 00:23:25.119
and Sixth Circuits were expediting consideration of the appeals, that
346
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it looked forward or expected it would revisit or have
347
00:23:29.640 --> 00:23:35.240
this dispute returned to it in the near future. In
348
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its decision, the Court wrote that section one O six
349
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' ten, which again defines sex discrimination to include discrimination
350
00:23:42.400 --> 00:23:45.079
on the basis of gender identity. They called it the
351
00:23:45.119 --> 00:23:49.000
central provision of the new regulation that they were allowing
352
00:23:49.039 --> 00:23:53.960
to be enjoyed. So this could certainly be a preview
353
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about possible clarification of the Court by the Court in
354
00:23:58.599 --> 00:24:01.720
the future, either in this case or another case, about
355
00:24:01.759 --> 00:24:06.400
whether Bostdoc expends to Title nine, And obviously, based on
356
00:24:06.440 --> 00:24:12.359
at least this preview, albeit on an expedited procedural posture
357
00:24:12.400 --> 00:24:14.839
as well as a limited record, it looks like the
358
00:24:14.880 --> 00:24:19.079
Court is saying does not cover Title nine. But again, well,
359
00:24:19.480 --> 00:24:22.880
we'll see what develops with regard to the scope to
360
00:24:22.920 --> 00:24:26.160
the Plumber injunctions. But beyond those three provisions of the
361
00:24:26.240 --> 00:24:30.119
rule that I mentioned. Five justice majority found the injunctions
362
00:24:30.160 --> 00:24:34.359
were not overbroad, and stating that stated that quote, there
363
00:24:34.400 --> 00:24:37.759
was not a sufficient basis to disturb the lower courts
364
00:24:37.799 --> 00:24:42.720
interim determination interim conclusions that the three provisions found likely
365
00:24:42.759 --> 00:24:47.359
to be unlawful are intertwined with and affect other provisions
366
00:24:47.400 --> 00:24:50.319
of the rule. In short, the government said the government
367
00:24:50.759 --> 00:24:53.720
I should say. The court said the government failed to
368
00:24:53.759 --> 00:24:56.920
carry its burden of showing that three other provisions are
369
00:24:56.960 --> 00:25:01.519
independent of the main three enjoyed. It was all inextricably intertwined,
370
00:25:01.559 --> 00:25:05.440
as they say, and the government had failed to show otherwise.
371
00:25:07.599 --> 00:25:10.000
There were four justices who found that the scope was
372
00:25:10.039 --> 00:25:13.200
too broad. They shouldn't have enjoyed. They shouldn't the injunction
373
00:25:13.279 --> 00:25:17.480
shouldn't have covered the entire rule. Justice Gorsic joined the
374
00:25:17.519 --> 00:25:20.000
three liberals and dissenting from that part of the decision.
375
00:25:21.000 --> 00:25:24.400
Justice Sodemayer wrote the dissent, and she said that they
376
00:25:24.440 --> 00:25:28.559
would the dissenters would say the preliminary junctions, except as
377
00:25:28.680 --> 00:25:32.200
to the three provisions at the heart of it as
378
00:25:32.240 --> 00:25:34.640
we've been talking about, and they would do so in
379
00:25:34.759 --> 00:25:40.680
keeping with tradition, the traditional principle equal remedies, which is
380
00:25:40.720 --> 00:25:43.799
that the relief afordage to plaintiffs must not be more
381
00:25:43.880 --> 00:25:50.559
burdensome than necessary to address the complaining parties. So again,
382
00:25:50.599 --> 00:25:55.680
they thought going beyond just the three central visions was
383
00:25:55.759 --> 00:26:02.119
too broad and contrary to traditional principles of equitable remedies.
384
00:26:03.200 --> 00:26:07.559
As I understand it, sort of, the three liberals presumably
385
00:26:08.240 --> 00:26:11.599
are not as sympathetic towards the rule generally, so maybe
386
00:26:11.640 --> 00:26:14.880
that's why they wanted to contain it. Justice Corsic, as
387
00:26:14.880 --> 00:26:18.160
he often does, He's got his own thing going on here.
388
00:26:18.480 --> 00:26:20.599
He I guess this is a hobby horse of his.
389
00:26:20.720 --> 00:26:24.960
He likes to keep injunctions narrow, which is not necessarily
390
00:26:24.960 --> 00:26:28.880
a bad thing, except for in this case I disagree
391
00:26:28.880 --> 00:26:32.119
with what he with his his thinking, but does a
392
00:26:32.160 --> 00:26:36.000
general matter, he doesn't like elief, effitable relief, which is
393
00:26:36.000 --> 00:26:39.279
of course extraordinary relief, to go beyond what it really
394
00:26:39.319 --> 00:26:44.839
has to do in order to provide the preliminary you know,
395
00:26:45.039 --> 00:26:50.680
preservation of the status quo. So but nonetheless, the state
396
00:26:50.720 --> 00:26:55.200
of the law is that the uh, the rule is
397
00:26:55.319 --> 00:26:59.480
enjoined in all the twenty six states UH in full. Currently,
398
00:27:01.839 --> 00:27:05.480
as of today, there are merits appeals on the preminary
399
00:27:05.519 --> 00:27:12.160
adjustion decisions that are currently pending in the Fifth, sixth, eighth, tenth,
400
00:27:12.400 --> 00:27:18.720
and eleventh circuits. Oral argument is scheduled for actually tomorrow,
401
00:27:20.160 --> 00:27:23.880
October thirtieth. In the sixth Circuit case, so if you're
402
00:27:23.920 --> 00:27:27.519
able to listen in online, that will be going on tomorrow,
403
00:27:27.839 --> 00:27:33.119
and I believe nine am Eastern. In our case, the
404
00:27:33.240 --> 00:27:36.680
oral argument is going to be heard on November fourth,
405
00:27:36.680 --> 00:27:39.880
the day before the election, at five o'clock in the afternoon.
406
00:27:40.799 --> 00:27:44.279
I believe the Eleventh Circuit recently scheduled oral argument the
407
00:27:44.359 --> 00:27:49.319
case before it for December eighteenth. As I mentioned, there
408
00:27:49.400 --> 00:27:51.880
were several cases filed I think at least two in
409
00:27:51.880 --> 00:27:55.680
the Northern District of Texas, and appeals by the government
410
00:27:55.720 --> 00:28:03.359
from those decisions have been aid pending our repeal disposition
411
00:28:03.400 --> 00:28:05.920
of our appeal before the Fifth So the Northern District,
412
00:28:07.279 --> 00:28:11.039
the prosecutors in Texas or the US attorneys in Texas
413
00:28:11.079 --> 00:28:14.599
have decided to allow our case to go forward first,
414
00:28:14.640 --> 00:28:18.039
I think, and they'll just sort of see what happens
415
00:28:18.079 --> 00:28:21.279
with the guard of our case. Meanwhile, back down at
416
00:28:21.279 --> 00:28:26.039
the district courts, not there has not been completely inactive
417
00:28:26.599 --> 00:28:30.200
or door went down there on September twentieth, as it's
418
00:28:30.440 --> 00:28:34.880
pursuing to its discovery obligations. The Department of Administration, I'm sorry,
419
00:28:34.920 --> 00:28:40.559
the Department of Education produced an administrative record that underlied
420
00:28:40.799 --> 00:28:45.279
or support its promulgation of the new rules which had
421
00:28:45.319 --> 00:28:47.680
have agreed to by the parties in all the cases.
422
00:28:48.519 --> 00:28:50.759
The government has sad up by September twentieth, give you,
423
00:28:51.359 --> 00:28:53.920
give all of you, all of you, plaintiff our administrative record,
424
00:28:54.319 --> 00:28:59.000
so they did that. The administrative record constitutes about I
425
00:28:59.079 --> 00:29:03.160
think it's forty thousand pages that need to be reviewed,
426
00:29:03.240 --> 00:29:07.359
so that may be the next step for many of us.
427
00:29:08.319 --> 00:29:11.279
In our case in Louisiana, there's been no scheduling order
428
00:29:11.319 --> 00:29:16.079
for despositive motions or anything like that. Discovery and proceedings
429
00:29:16.079 --> 00:29:21.160
aren't hold penning completion of the interlocatory appeal before the
430
00:29:21.160 --> 00:29:25.440
Fifth Circuit. However, that's not true for all the cases.
431
00:29:25.480 --> 00:29:27.960
I know that in the Northern District of Kentucky case,
432
00:29:28.680 --> 00:29:31.960
the parties that is, the government of the States, have
433
00:29:32.079 --> 00:29:36.599
filed cross motions for summary judgment. They were fully briefed
434
00:29:36.640 --> 00:29:40.000
by mid September, so who knows, you might even get
435
00:29:40.039 --> 00:29:44.119
a summary judgment decision from the Northern District of Kentucky
436
00:29:44.160 --> 00:29:47.519
before you get the Sixth Circus decision on the same case.
437
00:29:47.599 --> 00:29:51.640
But we'll see how all that develops. And finally, of course,
438
00:29:51.680 --> 00:29:55.200
to sort of wind down. As a practical matter of course,
439
00:29:55.480 --> 00:30:01.200
the November fifth presidential election may almost certainly will determine
440
00:30:01.759 --> 00:30:04.000
much of what happens to this rule, the new rule,
441
00:30:04.519 --> 00:30:09.079
as well as the litigation. Generally, presumably everything may quickly
442
00:30:09.119 --> 00:30:15.039
become moot if President Trump wins on November fifth, although
443
00:30:15.119 --> 00:30:18.720
we'll have to wait and see how that unfolds. So
444
00:30:19.799 --> 00:30:22.880
that concludes my overview of the cases. Appreciate your attention.
445
00:30:24.039 --> 00:30:26.519
I'd like to thank you for your time, and I'll
446
00:30:26.519 --> 00:30:28.799
open it up now to questions or comments.
447
00:30:30.000 --> 00:30:34.279
Great, well, well, thank you. I actually want to touch
448
00:30:34.319 --> 00:30:36.799
on your last point which you just mentioned, which is,
449
00:30:36.880 --> 00:30:41.240
you know how an upcoming administration affect Title nine and
450
00:30:41.440 --> 00:30:43.279
kind of interpretation is. So I was wondering if you
451
00:30:43.319 --> 00:30:46.240
could kind of explain a little bit more how you know,
452
00:30:46.240 --> 00:30:49.039
if this is a Harris administration, how the interpretation might
453
00:30:49.039 --> 00:30:52.839
look versus a Trump interpretation. And your thoughts on that.
454
00:30:54.079 --> 00:30:56.119
Yeah, I mean, I think it's just a star contract.
455
00:30:56.119 --> 00:30:58.440
I think if Harris win, they're going to this whole
456
00:30:59.720 --> 00:31:02.759
train agenda that has been pushed and again this is
457
00:31:02.920 --> 00:31:06.400
the Title nine context, but it's being pushed across the
458
00:31:06.400 --> 00:31:09.480
federal government. It's still going to go forward. It's very important,
459
00:31:10.000 --> 00:31:13.720
and I think it's politically very unpopular, but there's a
460
00:31:13.759 --> 00:31:18.319
constituency that's demanding it of the Democrats, and I think
461
00:31:20.160 --> 00:31:23.680
President Harris would push it forward. I see no sign
462
00:31:23.759 --> 00:31:28.599
of an abating. But also again we've had success in
463
00:31:28.640 --> 00:31:32.200
the courts thus far challenging it, and hopefully that would continue.
464
00:31:32.240 --> 00:31:35.559
We are in regardless of what kind of you know,
465
00:31:35.640 --> 00:31:38.839
permutations of Bostock or what have you they put forward.
466
00:31:39.319 --> 00:31:43.319
With regard to Trump, the Trump administration, I mean, again,
467
00:31:43.359 --> 00:31:47.720
you can just watch former President Trump's commercials is pretty
468
00:31:47.720 --> 00:31:50.759
clear he's not into this, very much against it, so
469
00:31:51.680 --> 00:31:54.119
I think he would shut it down as quickly as possible.
470
00:31:54.279 --> 00:31:59.039
There could be some internal resistance in the bureaucracy the swamp,
471
00:31:59.039 --> 00:32:02.480
as he says, but I don't think that would last long.
472
00:32:02.680 --> 00:32:06.079
So so we'll see. And again I don't know what
473
00:32:06.119 --> 00:32:09.839
the Biden administration would try to do between now and
474
00:32:10.440 --> 00:32:14.480
when he's actually finally no longer in office in January,
475
00:32:14.799 --> 00:32:17.200
if they would try to do something to push it forward,
476
00:32:17.720 --> 00:32:21.160
we'll just have to wait and say helpful.
477
00:32:22.200 --> 00:32:25.039
Great, And so turning to an audience summer question, and
478
00:32:25.039 --> 00:32:26.960
this is just a reminder to our audience that you
479
00:32:26.960 --> 00:32:30.079
can submit questions through the Q and a function at
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00:32:30.119 --> 00:32:32.920
the bottom of your screen. But someone asks, what is
481
00:32:32.920 --> 00:32:35.599
the government's defense to the spending clause argument?
482
00:32:38.240 --> 00:32:42.119
I think, and again let me. I think they basically
483
00:32:42.319 --> 00:32:46.039
say that it's not it's not really a change. I mean,
484
00:32:46.079 --> 00:32:50.039
the spending clause jurisprudence business clear. I've given you kind
485
00:32:50.039 --> 00:32:53.119
of you know, I want to say one sided, but
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00:32:53.119 --> 00:32:54.960
I've given you kind of you know what. I think
487
00:32:55.720 --> 00:33:00.799
the spending clause holds. But you know, there is a
488
00:33:00.799 --> 00:33:02.920
lot of discretion. There are a lot of cases that
489
00:33:03.599 --> 00:33:08.079
the Supreme Court says, has said that spending clause conditions
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00:33:08.119 --> 00:33:10.880
are pretty broad and the government gets a lot of
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00:33:10.920 --> 00:33:14.480
wiggle room as far as the strings it attaches to
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00:33:14.519 --> 00:33:19.880
the funds it distributes. Sibelius. A big part of the
493
00:33:19.920 --> 00:33:24.720
Sibelia's case, I think cut back on that it said
494
00:33:24.759 --> 00:33:26.880
that the amount of spending or is a lot of
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00:33:26.920 --> 00:33:33.039
money received through the medicaid program was so enormous that
496
00:33:33.160 --> 00:33:36.759
forcing states to accept i don't know as the individual
497
00:33:36.799 --> 00:33:40.680
mandate or whatever part of the Obamacare that was being
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00:33:40.720 --> 00:33:43.759
foisted on them under the spending clause, that was basically
499
00:33:43.799 --> 00:33:46.920
coursing them to They didn't really have a choice. It's,
500
00:33:46.960 --> 00:33:50.200
you know, an offer they couldn't refuse and Vito Corleoni
501
00:33:50.319 --> 00:33:52.039
kind of terms. And a lot of that we're saying
502
00:33:52.079 --> 00:33:55.440
as well, is that in the past and maybe that
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00:33:55.519 --> 00:33:59.319
the federal government has been given leeway in order to
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00:33:59.319 --> 00:34:05.640
compose or modify, clarify conditions. Again, the government is saying,
505
00:34:05.640 --> 00:34:08.360
in our case, we're not changing the definition of sex,
506
00:34:08.400 --> 00:34:12.280
we're just clarifying it. So I don't think that's true.
507
00:34:12.679 --> 00:34:15.599
And I do think that at least, you know, somewhat
508
00:34:16.519 --> 00:34:19.880
you know, and more recent jurisprudence, this whole notion of
509
00:34:21.280 --> 00:34:25.719
attaching strings to federal funding after the funding has gone
510
00:34:25.760 --> 00:34:28.239
out the door. There's been a settled practice for many years.
511
00:34:29.119 --> 00:34:31.800
It may amount to coercion. I mean, the test is
512
00:34:31.800 --> 00:34:33.480
there has to be a clear statement of what the
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00:34:33.480 --> 00:34:36.760
provision says. We don't think there was a clear statement
514
00:34:36.840 --> 00:34:39.280
of what we were the recipients were getting into when
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00:34:39.280 --> 00:34:42.679
they accepted these federal funds. Nobody knew that sex meant
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00:34:42.840 --> 00:34:47.079
anything other than biological sex. So there may be some changes.
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00:34:48.480 --> 00:34:54.400
The trend may be more towards you know, requiring clarification
518
00:34:54.639 --> 00:34:58.360
or you know, real set conditions by the federal government
519
00:34:59.079 --> 00:35:02.639
on the front end, more so than perhaps past cases
520
00:35:03.079 --> 00:35:06.679
have allowed for. So I'm just saying the trend may
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00:35:06.719 --> 00:35:10.840
be good for us. In short, I think it is great.
522
00:35:10.960 --> 00:35:14.360
And someone else asks, could Trump not only repeal the
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00:35:14.400 --> 00:35:17.480
new rule but change the federal government's litigation position in
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00:35:17.519 --> 00:35:18.480
the current cases.
525
00:35:20.519 --> 00:35:23.280
Yeah, oh yeah, most certainly, I think. You know, I mean,
526
00:35:23.440 --> 00:35:26.119
there was this notion in the past about you know,
527
00:35:26.199 --> 00:35:30.679
defending the law and everything like that, regardless of sort
528
00:35:30.679 --> 00:35:32.239
of who it came from. But here, of course, the
529
00:35:32.320 --> 00:35:36.119
law was enacted by Congress, so we just talked about
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00:35:36.239 --> 00:35:39.920
defending regulations. But those regulations. I think again, you know,
531
00:35:40.159 --> 00:35:43.079
we've won in every court we've been in so far,
532
00:35:43.159 --> 00:35:45.920
at least on a preliminary basis. So I think I
533
00:35:45.960 --> 00:35:48.360
think Trump would would do whatever he could. I think
534
00:35:48.400 --> 00:35:52.400
he would tell and known on certain terms his doj
535
00:35:52.639 --> 00:35:56.760
to drop this. So the exact and I'm not a
536
00:35:56.920 --> 00:35:59.760
DC guy, so I don't necessarily know the exact mechanics
537
00:35:59.760 --> 00:36:03.679
for doing that. But I don't think President Trump knows
538
00:36:03.719 --> 00:36:07.000
those procedural niceties either. But he would just say drop this,
539
00:36:07.119 --> 00:36:10.239
let's get out of the trans business and stop pushing
540
00:36:10.639 --> 00:36:13.280
this agenda because we're losing. And obviously he doesn't believe
541
00:36:13.320 --> 00:36:15.280
in it, and I think that most of the American
542
00:36:15.280 --> 00:36:17.199
people have real problems with it.
543
00:36:19.119 --> 00:36:24.039
Helpful, So thoughts on how Looper Bright and it's possible
544
00:36:24.039 --> 00:36:29.719
implications for our deference might implicate the guidance documents from
545
00:36:29.719 --> 00:36:32.760
the Office of Civil Rights regarding women's sports on schools
546
00:36:32.760 --> 00:36:33.119
if at.
547
00:36:33.079 --> 00:36:35.639
All, Yeah, I know, I mean, that's a good question.
548
00:36:35.679 --> 00:36:38.880
And obviously, lopeer Bright, I mean it came out after
549
00:36:38.880 --> 00:36:41.599
we had filed our claim, I think our case back
550
00:36:41.639 --> 00:36:46.480
in April, but we certainly kind of thought things look good.
551
00:36:47.039 --> 00:36:50.119
And I think I know that some of our appellate
552
00:36:50.199 --> 00:36:54.280
briefing we've referred to what I believe so to the extent.
553
00:36:54.360 --> 00:36:57.719
But again, the issue there is the government's not saying
554
00:36:58.159 --> 00:37:01.599
that sex is ambiguous or unclear. They get to step
555
00:37:01.639 --> 00:37:04.119
into the breach and define it. They're saying they're not
556
00:37:04.159 --> 00:37:08.119
defining it. They're saying, we're just clarifying it. And so
557
00:37:08.960 --> 00:37:12.320
I mean, I think lower Bright general proposition of lober
558
00:37:12.360 --> 00:37:16.039
Bright Jacrasy corner post, all the cases that came down
559
00:37:16.119 --> 00:37:19.599
last term that push back on the administrative state. I
560
00:37:19.599 --> 00:37:23.519
think all those just give a general sentiment that's helpful,
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00:37:23.639 --> 00:37:28.239
namely that bureaucracies can't do what they want, and that
562
00:37:28.320 --> 00:37:31.920
at least general sentiment will play well in this. But
563
00:37:31.960 --> 00:37:35.679
again that no one's saying. I think that if I recall,
564
00:37:35.719 --> 00:37:39.719
the government is saying this is not ambiguous. Sex isn't ambiguous,
565
00:37:39.960 --> 00:37:46.519
and we're just clarifying what it means, not redefining it. Great.
566
00:37:47.159 --> 00:37:50.559
Another question, someone says, and set up withdrawing the cases,
567
00:37:50.800 --> 00:37:55.880
could a potential Trump DOJ set enter into helpful consent
568
00:37:55.960 --> 00:38:00.480
degrees with the plaintiffs that would bind future dojs, hinting
569
00:38:00.519 --> 00:38:02.760
that kind of maybe past administrations have done this in
570
00:38:02.840 --> 00:38:03.559
various ways.
571
00:38:04.360 --> 00:38:07.360
Yeah, the whole the whole sue and sales strategy where
572
00:38:07.880 --> 00:38:12.639
you know, the like environmental rights groups sues the government,
573
00:38:13.320 --> 00:38:15.840
you know, a frond, you know, the friendly e p A,
574
00:38:16.039 --> 00:38:17.840
and then the friendly e p A enters into a
575
00:38:17.880 --> 00:38:22.599
friendly settlement agreement, you know, to bind future e pas
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00:38:22.679 --> 00:38:26.199
and future FILD governments. That sue and seales strategy, I
577
00:38:26.199 --> 00:38:29.320
think is something that you know, it's good for the goose,
578
00:38:29.440 --> 00:38:31.480
is good for the gander. I would imagine there'd be
579
00:38:31.480 --> 00:38:33.719
some effort at that here. I don't know whether just
580
00:38:33.719 --> 00:38:36.840
dismissing everything outright and throwing it is the better way
581
00:38:36.880 --> 00:38:39.320
of doing it. Again, getting back to local right, I
582
00:38:39.360 --> 00:38:43.519
think there'll be less room going forward for agencies to
583
00:38:43.599 --> 00:38:48.239
inject their policy spin on statutory terms. Hopefully Congress will
584
00:38:48.280 --> 00:38:51.719
actually start doing something and uh, you know, they'll they'll
585
00:38:51.840 --> 00:38:54.440
enact statutes that do that to the extent there's public
586
00:38:54.440 --> 00:38:57.599
support for it. But the sue and settle model, you
587
00:38:57.639 --> 00:39:01.480
know again, it's it's it's it's something that's certainly the
588
00:39:01.559 --> 00:39:04.159
left is done, and then the rights shouldn't be afraid
589
00:39:04.199 --> 00:39:04.960
if it makes sense.
590
00:39:07.000 --> 00:39:10.599
A great wants to know, have any of the decisions
591
00:39:10.599 --> 00:39:14.719
thus far in these cases been penned by judge or
592
00:39:14.880 --> 00:39:17.400
justices that some might kind of consider more on the
593
00:39:17.400 --> 00:39:18.239
progressive wing.
594
00:39:20.760 --> 00:39:23.320
Well, I mean, you know the Supreme Court case all All,
595
00:39:23.480 --> 00:39:28.800
I mean Sodomyer, Brown, Jackson, and Keigan. They all said
596
00:39:28.840 --> 00:39:42.360
that the Plembraine one six ten, the redefinition of sex
597
00:39:42.400 --> 00:39:47.000
and sexual harassment and sex separate spaces. So they've all
598
00:39:47.000 --> 00:39:50.679
said that. I think that's kind of, you know, the
599
00:39:50.679 --> 00:39:54.960
main thing. Otherwise, I don't know, I forget the judges
600
00:39:54.960 --> 00:39:58.000
are I mean generally, you know, the suits were brought
601
00:39:58.599 --> 00:40:01.280
jurisdiction that might be more fan only to the arguments
602
00:40:01.360 --> 00:40:04.360
states are making. So many of the judges, not most,
603
00:40:04.800 --> 00:40:08.400
are of that persuasion, but at the highest level again,
604
00:40:08.440 --> 00:40:11.079
you've got the three of the classic liberals on the
605
00:40:11.119 --> 00:40:16.079
Supreme Court joining into this unanimous decision upholding Plummery injunction
606
00:40:16.159 --> 00:40:19.440
as to the three kind of primary parts of the
607
00:40:19.440 --> 00:40:19.840
new role.
608
00:40:22.559 --> 00:40:28.679
Great, And unless there are any other questions for parents
609
00:40:28.679 --> 00:40:31.679
that are potentially looking to get involved somehow, you know,
610
00:40:31.880 --> 00:40:35.880
with kids at schools and potentially being kind of concerned
611
00:40:35.880 --> 00:40:39.280
as some of these kind of Title nine cases moved through,
612
00:40:39.360 --> 00:40:41.199
you know, how would you recommend parents to kind of
613
00:40:41.239 --> 00:40:42.320
be get involved in some of this?
614
00:40:43.320 --> 00:40:45.519
Well, what I think, as I mentioned earlier, you know,
615
00:40:45.599 --> 00:40:50.400
Moms for Liberty and Young Americans for Freedom, they were litigants,
616
00:40:50.440 --> 00:40:52.679
and I think you know again, I know in Wisconsin
617
00:40:52.760 --> 00:40:55.960
there's been some dispute as to children with members of
618
00:40:55.960 --> 00:40:58.840
Mom for Liberty are saying in certain school districts in Wisconsin,
619
00:40:59.480 --> 00:41:02.320
or at least the schools and maybe not across the district,
620
00:41:02.519 --> 00:41:04.639
but that you can't do that because a judge in
621
00:41:04.679 --> 00:41:07.440
one of these cases said you can't do that because
622
00:41:07.440 --> 00:41:09.280
my kid is at the school. And I think people
623
00:41:09.320 --> 00:41:13.599
are I believe I've heard that people are actually joining
624
00:41:13.639 --> 00:41:16.840
Moms for Liberty and I guess maybe young Americans for
625
00:41:16.960 --> 00:41:19.119
Freedom in order to be able to make the same
626
00:41:19.199 --> 00:41:22.280
argument in the schools of their children attend. So that's
627
00:41:22.280 --> 00:41:25.599
something immediately you can do. Again, it's school districts and
628
00:41:25.599 --> 00:41:27.559
schools are going to fight back and the Left is
629
00:41:27.599 --> 00:41:29.639
going to come in and say you can't do that.
630
00:41:29.760 --> 00:41:33.320
And it's sort of murky right now, but that's going
631
00:41:33.360 --> 00:41:36.639
on again, I know in my state. And again my
632
00:41:36.719 --> 00:41:40.119
understanding is that people are joining these two groups so
633
00:41:40.199 --> 00:41:43.119
that it'll apply to their children's schools. Namely, these Title
634
00:41:43.239 --> 00:41:46.159
nine rags can't be enforced there.
635
00:41:47.840 --> 00:41:51.360
Great well, don thank you so much, and on behalf
636
00:41:51.360 --> 00:41:53.400
of the Federalist Society. I want to thank you for
637
00:41:53.440 --> 00:41:56.679
the benefit of your time and expertise today. Thank you
638
00:41:56.719 --> 00:41:59.119
also to the audience members who joined us. We greatly
639
00:41:59.199 --> 00:42:03.519
appreciate your ptnticipation. Check out our website fedsock dot org
640
00:42:03.840 --> 00:42:06.559
or follow us on all major social media platforms at
641
00:42:06.599 --> 00:42:09.400
fedsoc to stay up to date with announcements and upcoming
642
00:42:09.400 --> 00:42:09.960
wepin ours.
643
00:42:10.760 --> 00:42:13.840
That would say just to if anybody has additional questions
644
00:42:13.880 --> 00:42:16.199
we couldn't get to, feel free to track me down.
645
00:42:16.280 --> 00:42:19.480
My information should be available, so feel free to track
646
00:42:19.480 --> 00:42:21.199
me down with any questions or comments you may have.
647
00:42:21.320 --> 00:42:24.360
And again, I appreciate Films Society hosting me, and I
648
00:42:24.440 --> 00:42:26.320
appreciate you all listening to me.
649
00:42:26.880 --> 00:42:30.199
Great well, thanks for that very generous software. Well, thank
650
00:42:30.199 --> 00:42:32.840
you all so much for tuning in, and with that
651
00:42:32.920 --> 00:42:33.880
we are adjourned.
652
00:42:35.960 --> 00:42:38.599
Thank you for listening to this episode of FEDSOC Forums,
653
00:42:38.679 --> 00:42:41.840
a podcast of the Federal Societies Practice Groups. For more
654
00:42:41.840 --> 00:42:45.079
information about the Federal Society, the Practice Groups, and to
655
00:42:45.119 --> 00:42:48.000
become a Federal Society member, please visit our website at
656
00:42:48.039 --> 00:42:49.360
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