On August 16, the Supreme Court handed down a decision in two cases concerning the Biden Administration’s efforts to issue new Title IX rules. What was the issue before the Court, and what did the Court Say? Was the decision really 5-4 as widely reported in the media? What are the implications of the ruling?
As is often the case with politically charged Court rulings, the common immediate reporting is not entirely accurate. We will go through what happened here.
Title IX in Summary
Let’s begin with an explanation of what Title IX is. In 1972, Congress passed amendments to the Higher Education Act of 1965 and the Elementary and Secondary Education Act of 1972. Collectively, these amendments are referred to as the Education Amendments Act of 1972. Title IX of the amendments addresses discrimination in educational programs. It primarily refers to sex discrimination, but also prohibits access based on blindness.
In general, Title IX provides that
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
20 USC 1681(a)
The law does provide some exceptions for religious institutions whose religious teachings would be violated by adhering to these rules, military training facilities, traditionally unisex schools, and other miscellaneous exceptions. In general, however, Title IX applies to the vast majority of educational institutions in the United States.
An educational program or activity includes “all of the operations of” the following types of institutions (20 USC 1687)
- State or local schools, school districts, or other educational agencies receiving federal funds
- State colleges, universities, vocational schools, or other public systems of higher education
- Private educational institutions receiving federal funds
Since “all operations” of these institutions which receive federal funding are covered, the prohibition of sex discrimination goes beyond purely academic matters. It includes related things such as housing, health care, financial aid, sports participation, and access to extracurricular activities.
Proposed Title IX Rule and Court Proceedings
On April 29, 2024, the U. S. Department of Education published revised rules for implementing Title IX (89 Fed. Reg. 33474-33896). This 423-page rule is a complete overhaul of the rule previously in place. The rule was scheduled to go into effect on August 1, 2024. It covers a wide range of issues related to Title IX interpretation and enforcement. Much of the revised rule is seemingly uncontroversial.
Parts of the rule led to two lawsuits to block implementation of the rule. The controversy centers around the following provisions.
Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.
89 Fed. Reg. 33886, 34 CFR §106.10
In the limited circumstances in which Title IX or this part permits different treatment or separation on the basis of sex, a recipient must not carry out such different treatment or separation in a manner that discriminates on the basis of sex by subjecting a person to more than de minimis harm, except as permitted by 20 U.S.C. 1681(a)(1) through (9) and the corresponding regulations §§ 106.12 through 106.15, 20 U.S.C. 1686 and its corresponding regulation § 106.32(b)(1), or § 106.41(b). Adopting a policy or engaging in a practice that prevents a person from participating in an education program or activity consistent with the person’s gender identity subjects a person to more than de minimis harm on the basis of sex.
89 Fed. Reg. 33887, 34 CFR §106.31(a)(2)
Hostile Environment Harassment [is defined as]
Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from the recipient’s education program or activity (i.e., creates a hostile environment).
89 Fed. Reg. 33884, 34 CFR §106.2
Several states filed suit challenging the rule. One suit included Louisiana, Mississippi, Montana, Idaho, Louisiana Department of Education, and eighteen Louisiana school boards as plaintiffs. Another suit included Tennessee, Kentucky, Ohio, Indiana, Virginia, West Virginia, a Christian teachers organization, and a fifteen year old girl from West Virginia. These two cases ultimately reached the U. S. Supreme Court, leading to the ruling on August 16. A number of other similar lawsuits have been filed by other states and school districts. We are limiting our discussion to the two cases which were part of the August 16 ruling.
The Points of Controversy
The plaintiffs allege
that the rule unlawfully redefines sex discrimination; that it violates students’ and employees’ rights to bodily privacy and safety; and that its definition of hostile environment harassment is inconsistent with the statute and violates the First Amendment.
Department of Education, et al v. Louisiana et al; Miguel Cardona et al v. Tennessee et al., Nos. 24A78, 24A79, slip opinion at 1 (US Sup. Ct., August 16, 2024), Justice Sotomayer et al, dissenting in part
Federal District Courts in Louisiana and Kentucky agreed with the states. They issued injunctions blocking the rule in the states that had filed suit. This means that the new rule would not be effective in any of the states who had sued. While the plaintiffs were mainly concerned with the three provisions of the rule noted above, the District Courts blocked enforcement of the entire rule.
The government appealed these injunctions, seeking to reverse the District Courts’ decisions and asking for a stay. A stay would allow the rule to go into effect until all court proceedings on the rule were concluded. The Fifth and Sixth Circuit Courts of Appeal refused to grant a stay and left the injunctions in place.
The government appealed to the United States Supreme Court, requesting a partial stay. They wanted all of the rule to go into effect, except the parts that were being challenged.
Supreme Court Decision
On August 16, the Supreme Court issued a per curium ruling on the request for a stay. Unlike typical Supreme Court opinions, a per curium ruling is unsigned, meaning we don’t know which of the Justices wrote it. This often indicates unanimous agreement by members of the Court on the outcome. In this case, however, Justice Sotomayer authored a dissent in part. This means, she agreed with part of the ruling but not all of it. Justices Kagan, Gorsuch, and Jackson joined Justice Sotomayer’s opinion. This means they agreed with her opinion of how the Court’s ruling was incorrect.
Court’s Ruling
The first paragraph of the two and a half page per curium ruling gets right to the point.
The application for a partial stay presented to JUSTICE ALITO in No. 24A78 and by him referred to the Court is denied. The application for a partial stay presented to JUSTICE KAVANAUGH in No. 24A79 and by him referred to the Court is denied.
Department of Education, et al v. Louisiana et al; Miguel Cardona et al v. Tennessee et al., Nos. 24A78, 24A79, slip opinion at 1 (US Sup. Ct., August 16, 2024)
The government requested that the uncontested parts of the rule be allowed to go into effect. The Court concluded, however, that the change in definition of sex discrimination in the rule would affect all of the rule. This was in agreement with the findings of the District Courts. The Court ruled that
the Government has not provided this Court a sufficient basis to disturb the lower courts’ interim conclusions that the three provisions found likely to be unlawful 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.
Slip opinion, at 2-3
So, the Court held that the parts the government wanted to be allowed could not be safely separated from the parts being challenged in the courts.
The cases now return to the Appeals Courts for a full consideration of the merits of the claims made by the plaintiffs. It seems likely that the cases will return to the Supreme Court for consideration of the rule itself, instead of a stay enforcing the rule.
Justice Sotomayer’s Dissent in Part
Justice Sotomayer notes that the original request for an injunction in the District Court focused on the three specific provisions of the rule we outlined. She sees the original injunctions as too broad. In Sotomayer’s opinion, the District Courts should have only blocked the contested provisions from going into effect. She writes
I would grant most of the Government’s stay requests and leave enjoined only its enforcement of the three challenged provisions.
Slip opinion, at 6, Justice Sotomayer et al, dissenting in part
Further
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. The injunctions this Court leaves in place will burden the Government more than necessary.
Slip opinion, at 8, Justice Sotomayer et al, dissenting in part
The dissenters thus disagree with the Court’s ruling in its breadth and whether or not the contested parts of the rule can reasonably be separated from the rest of the rule.
Court Unity and Division
This case was widely reported in the media as a 5-4 decision on the controversial portions of the rule. That reporting is largely inaccurate, as there was unanimity, in fact, on keeping the injunction in place on the contested parts of the rule.
Importantly, all Members of the Court today accept that the plaintiffs were entitled to preliminary injunctive relief as to three provisions of the rule, including the central provision that newly defines sex discrimination to include discrimination on the basis of sexual orientation and gender identity.
Slip opinion, at 2
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. Respondents’ alleged injuries flow from those three provisions.
Slip opinion, at 1, Justice Sotomayer et al, dissenting in part
In this case, all nine Justices agreed that the challenged portions of the rule should not be allowed to go into effect. This may change as court proceedings move forward, but for now there was complete agreement on that point. The point of contention is whether some or all of the other parts of the rule should be allowed to go into effect. So, was this a 5-4 opinion as widely reported, or was it 9-0? It really depends on how you choose to look at it and what you think is the most important issue in these cases.
Often discerning how unified or divided the Court is on a case is complex. It is not uncommon to have a majority opinion representing the Court and one or more dissents. In that case, it is easy to see how unified or closely divided the Court is. Often, however, we have the ruling of the court, plus dissents, plus concurring opinions. Justices write concurring opinions to agree with the decision of the Court, but often for additional or different reasons. It can get even more complex, especially when the Court decides multiple issues in the ruling. Justices may write opinions that concur in part and dissent in part.