Democratic-Appointed Judges Highly Critical of New Title IX Regulation

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Robert Thompson: 301-801-0608

Democratic-Appointed Judges Highly Critical of New Title IX Regulation

WASHINGTON / August 27, 2024 – On April 19, the U.S. Department of Education issued its long-awaited Title IX regulation (1). Media accounts have generally classified supporters of the rule as “liberal,” while opponents of the policy categorized as “conservative.” (2) But subsequent judicial rulings have cast doubt on this convenient stereotype.

Over the last three months, 10 lawsuits have been filed against the controversial policy. In response, circuit courts, appellate courts, and the Supreme Court have handed down a total of 12 decisions. Eleven out of the 12 opinions have imposed a temporary injunction on the rule. (3)

One of the most unexpected aspects of the decisions is the fact that many judges appointed by Democratic lawmakers have been highly critical of the policy. This fact is revealed in two decisions: the August 16 ruling by the U.S. Supreme Court, three of whose members were named by Democratic presidents; and the July 24 decision by District Court Judge Rodney Sippel, nominated by President Bill Clinton in 1997:

Supreme Court: In their August 16 decision, Justice Sotomayor, with the concurrence of Justices Kagan and Jackson (along with Justice Gorsuch, nominated by a Republican president) authored this stunning rebuke of the Department of Education document (4):

“Every Member of the Court agrees respondents are entitled to interim relief as to three provisions of that Rule: 34 CFR §106.10 (2023) (defining sex discrimination), §106.31(a)(2) (prohibiting schools from preventing individuals from accessing certain sex-separated spaces consistent with their gender identity), and §106.2’s definition of hostile environment harassment.”

Their statement expressed a categorical disapproval of the new regulation’s plan to:

Redefine sex to include “gender identity.”
Allow transgender students to use bathrooms and locker rooms designated for members of the opposite sex.
Create a new definition of “hostile environment harassment” which would have the effect of chilling free speech and negating Supreme Court precedent.

Circuit Court Judge Sippel: On May 7, the states of Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota filed their complaint against the Department of Education (5). Eleven weeks later, Judge Rodney Sippel of the Eastern District of Missouri issued his opinion. His 56-page decision expressed concerns about the same three issues enumerated by the Supreme Court, but went far beyond that. The Sippel ruling also expressed doubts about:

Irreparable Injury: “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
Overly Broad Scope: “Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender.”
Spending Clause: “Since Title IX was enacted pursuant to Congress’s authority under the Spending Clause of the Constitution…the Supreme Court ‘insists that Congress speak with a clear voice’ when imposing conditions on the receipt of federal funds,”
Statutory Authority: Judge Sippel rebuked the Department of Education for exceeding its “statutory authority” a total of 10 times in his decision.
Arbitrary and Capricious: The Judge repeatedly criticized the Title IX regulation for being “arbitrary and capricious.”

At the end, Democratic-appointed Judge Sippel penned this stunning conclusion: “After due consideration of all the foregoing authorities in light of the aforementioned differences between the two statutes, Bostock’s express disavowal to bathrooms or locker rooms or other statutory schemes, and in the absence of controlling authority, the Court concludes that plaintiffs have met their preliminary burden of demonstrating a fair chance of prevailing on their argument that Bostock should not apply to Title IX, and that the Department exceeded its statutory authority and/or acted contrary to law in redefining ‘on the basis of sex’ for purposes of Title IX.”

Following the 12 decisions, the Title IX policy has been frozen in the 26 states of LA, MS, MT, ID, TN, KY, OH, IN, VA, WV, KS, AK, UT, WY, TX, AR, MO, OA, NE, ND, SD, AL, FL, GA, SC, and OK, as well as in thousands of schools in 45 states attended by children of Moms for Liberty members and by members of the Young America’s Foundation (6).

Given the bipartisan legal and public (7) opposition to the Title IX regulation, and given its high implementation costs, governors and school superintendents in the remaining 24 states should consider instructing their schools to not implement the moribund Title IX regulation.

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