Loper Bright, Final Rule Injunctions, and More – Just How Messy Are Things Going to Get?

Types : Alerts

To say that it has been an exciting summer in the world of administrative law and therefore, for the Department of Education (DOE), would be an understatement. As of today, 26 states have been successful in their efforts to obtain preliminary injunctions barring the DOE from enforcing the Final Rule interpreting Title IX issued in April. Four of those states lost at the trial court level but convinced the Eleventh Circuit to come to their aid. Other Circuit courts have yet to weigh in. Complicating matters, the DOE is also enjoined from enforcing the rule at numerous educational institutions outside those 26 states. What happened, and what is the broader context here?

The fireworks in the world of administrative law started on June 28, 2024, when the Supreme Court overturned 40 years of precedent requiring courts to defer to federal agencies’ reasonable interpretations of federal law. See Loper Bright Enterprises, et al v. Raimondo, (Docket No. 22-451) and Relentless, Inc., v. Department of Commerce (No. 22-1219) (June 28, 2024) (collectively “Loper”). In the seminal case on administrative power, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 468 U.S. 837 (1984), the Court considered a challenge to the Environmental Protection Agency’s interpretation of the Clean Air Act Amendments of 1977. It held that the standard for review of an agency’s construction of the statute which it administers, when Congress has not clearly spoken to the precise question at hand, is simply whether the agency’s interpretation is based on a “permissible” construction of the statute. In Chevron, the Court stressed its adherence to “the principle of deference to administrative interpretations.”

Chevron deference was felled this summer by an association of Atlantic herring fishermen. In Loper, the fishermen challenged the National Marine Fisheries Service’s (NMFS) interpretation of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which required the fishermen to pay conservation data collectors on their vessels. Because the MSA did not speak directly to how such costs should be covered, Chevron required deference to the NMFS’s “permissible” interpretation of the statute. In a 6-3 decision along ideological lines, the conservative majority of the Supreme Court found that Chevron was wrongly decided and inconsistent with Article III of the Constitution and the Administrative Procedures Act (APA), reasoning that courts, and not administrative agencies, have the power to decide legal questions.

Loper, which was issued nearly two months to the day after the DOE released its Final Rule interpreting Title IX of the Education Amendments of 1972, has already changed the landscape for the courts deciding challenges to the Final Rule, which we initially detailed here. Pre-Loper, on June 13 and June 17, 2024, the United States District Courts for the Western District of Louisiana and the Eastern District of Kentucky, respectively, issued injunctions prohibiting the DOE from implementing or enforcing the Final Rule in the states which had brought lawsuits in their courts: Louisiana, Mississippi, Montana, Idaho, Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia. See, Louisiana v. Dept. of Educ., 2024 WL 2978786, at *2 (W.D. La. June 13, 2024); Tennessee v. Cardona, 2024 WL 3019146 (E.D. Ky. June 17, 2024). Though these states’ challenges to the Final Rule were multi-faceted, they were focused on the DOE’s interpretation of Title IX as prohibiting discrimination on the basis of gender identity and sexual orientation, which the plaintiff states argued violated the text and spirit of Title IX.

The first court to consider an injunction request post-Loper, the District of Kansas, wasted no time citing Loper for the proposition that it “need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.” See Kansas v. Dept. of Educ., 2024 WL 3273285 (D. Kan. July 2, 2024). Its citation, however, was superfluous—the Court did not conclude that Title IX is ambiguous on the question of how to define “sex.” It held, rather, that the text of Title IX and the legislative history behind it make clear that it provides protection based on “biological sex” only, rendering the Rule unlawful to the extent that it prohibits harassment based on gender identity and sexual orientation. The Louisiana and Kentucky decisions reached the same conclusion even without the benefit of Loper.

The U.S. District Court for the Northern District of Texas issued its decision granting an injunction on July 11, citing Loper nowhere in its Memorandum—presumably because it found that “[t]he Final Rule inverts the text, history, and tradition of Title IX” for its extension of protections based on gender identity and sexual orientation, and for a definition of “hostile environment harassment” that will “chill student and professor speech on recipient campuses.” In short, it would have found, even under Chevron, that the DOE’s interpretation of Title IX is at odds with clear Congressional pronouncements on these issues. See Texas, et al. v. United States, et al., No. 2:24CV86-Z (N. D. Tex. July 11, 2024). When the U.S. District Court for the Eastern District of Missouri issued its decision later in July, which enjoined the DOE from enforcing the Rule in Arkansas, Missouri, Iowa, Nebraska, North Dakota, and South Dakota, it, like the District of Kansas, cited Loper for the proposition that it was required to exercise its independent judgment in deciding whether the DOE acted within its statutory authority in defining “sex,” under Title IX, to include gender identity. See State of Arkansas, et al v. United States Dept. of Educ., 4:24-cv-636-RWS (E.D. Missouri, July 24, 2024). 

The Kansas and Missouri decisions relied on Loper in a somewhat shallow manner. But when the Western District of Oklahoma issued its decision granting Oklahoma’s request for an injunction on July 31, it cited Loper on the first page and several more times within the decision, including in support of its finding that Title IX’s interpretation of “sex” at the time of its passage should control its ruling. See Oklahoma v. Cardona, et al, No. 5:24-cv-00461 (W.D. Okla. July 31, 2024).

Then, in a surprising decision, the U.S. District Court for the Northern District of Alabama denied the request of plaintiff-states Alabama, South Carolina, Georgia, and Florida for a preliminary injunction. The court noted that Title IX and past regulations nowhere define “sex,” citing Loper for the same proposition the courts in Kansas, Missouri, and Oklahoma did, but reached the opposite conclusion about whether the DOE’s interpretation of Title IX in the Final Rule is clearly contrary to the statute. The court rejected plaintiffs’ legal arguments as unsound or unsupported and observed at one point that, “[a]t their core, Plaintiffs’ arguments are… that Plaintiffs disagree [with the DOE] as a policy matter.” The court’s decision was reversed a day later, and one day prior to the August 1 effective date of the Final Rule, when the Eleventh Circuit granted the plaintiffs’ request for an administrative injunction in a one-page order.

In the months and years to come, more questions about the interpretation of Title IX will inevitably be raised as a result of both Loper and another momentous decision—Corner Post Inc. v. Board of Governors of the Federal Reserve System (Docket No. 22-1108) (July 1, 2024)—which altered the effective statute of limitations for claims against federal agencies and will make it far easier for individuals to challenge federal regulations. It certainly seems possible that Justice Ketanji Brown Jackson’s prediction in her Corner Post dissent—that a “tsunami of lawsuits” resulting from these decisions will devastate the federal government—could prove correct as it relates to Title IX. And now that courts have free reign to review federal agency rules and interpretations outside the confines of Chevron, more conflicts among the district and circuit courts will undoubtedly arise.

As of today, the 26 states with injunctions currently in place prohibiting the DOE from enforcing the Final Rule are: Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming. No court has issued a nationwide injunction. 

The District of Kansas held that the DOE is enjoined not just from enforcing the rule in the plaintiff-states before it, but also at any institution attended by even a single member of plaintiff-organizations Young America’s Foundation (YAF) and Female Athletes United (FAU), or any school district attended by a child of a member of the nationwide conservative group Moms for Liberty. The list of such institutions identified by the plaintiffs is extensive and includes colleges and universities across the country, and it will likely be supplemented in the future.

The DOE has acknowledged that it is enjoined from enforcing the Final Rule as set forth above and will continue to enforce the 2020 Title IX Final Rule in those states and institutions subject to an injunction.

It is worth noting that though the Kansas ruling may prohibit the DOE from enforcing the Final Rule even in states and at entities that did not seek injunctive relief, schools may still be subject to state laws that broadly define sex in prohibiting discrimination. Pennsylvania, New Jersey, and New York, for example, all have binding regulations or laws that prohibit discrimination on the basis of sexual orientation, gender identity, and/or gender expression. Navigating the ever-changing landscape of Title IX and related anti-discrimination laws is not going to get any easier.

If you have any questions regarding the changing landscape of Title IX, please contact Carrie Evans Wilson or Abigail Parnell of Montgomery McCracken’s Higher Education Group.