95. The Title IX Ruling is a Huge Mess

The justices' efforts to explain their votes with respect to a major ruling on a pair of emergency applications raise more questions than they answer—again

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Both because it was literally the only ruling that the Court handed down last week and because it’s both a big deal and a huge mess, the focus of this week’s issue is Friday afternoon’s ruling in Department of Education v. Louisiana—in which a 5-4 majority rejected a pair of emergency applications from the Biden administration that had sought to put back into effect most (but not all) of the Department of Education’s new rule implementing “Title IX.”

Before getting to that, though, let’s first cover what’s on the docket for the coming week.

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On the Docket

Even with Friday’s ruling in the two Title IX cases, the justices are still sitting on 15 emergency applications, 14 of which are of national significance (including a new Biden administration application in the Eighth Circuit student loan case and a new application filed on Friday that challenges the EPA’s Mercury and Air Toxics Standards). The most urgent of the pending applications is probably the Republican National Committee’s effort to put back into effect Arizona laws requiring documentary proof of citizenship before voting—on which the Court is very likely to rule this week (the RNC has claimed that there’s an August 22 deadline for printing certain ballots).

Many of the other pending applications will become ripe later this week when response and reply briefs come in, but it will probably take the justices some time to sort them all out. What can’t be denied is that, in marked contrast to what was true as recently as a decade ago, the justices’ summer “break” (which hits its halfway point today) now features a steady stream of significant and divisive emergency applications. The more that this has become the new normal, the more the justices would do well to meaningfully reflect on whether this shift in their workflow is actually a healthy one (spoiler alert: it isn’t).

Oh, and we also expect a routine, housekeeping Order List at 9:30 ET this morning.

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The One First “Long Read”:
A Half-Cheer for the Title IX Ruling

As noted above, late Friday afternoon, the Court handed down a 5-4 ruling rejecting two Biden administration emergency applications in disputes over the Department of Education’s new efforts to implement Title IX. To the Court’s credit, there’s actually a majority opinion (the first opinion of the Court respecting an un-argued emergency application since March 2022), even if it’s just 2.5 pages. But that’s just about where the credit stops. The unsigned majority opinion creates a new requirement for emergency applications that … doesn’t make sense (and, in the process, holds the Biden administration to a burden to which it never held the Trump administration); and it avoids the hardest issue the applications raise by … simply pretending it wasn’t raised.

The dissent isn’t much better—asking and answering the wrong question, and thereby not just endorsing the majority’s biggest error, but also leaving what is almost certainly a misimpression that the justices have doubts about the substantive merits of the new Title IX rule, when in fact it’s unlikely that they assessed those merits at all. It’s all just a big mess—and yet further proof of how impoverished the Court’s decisionmaking on emergency applications tends to be.

Background

Let’s start with the underlying disputes. “Title IX” is shorthand for part of Education Amendments of 1972, which, in deliberate parallel to the central provision of Title VI of the Civil Rights Act of 1964, states that “no person can be excluded from participation in, denied benefits from, or subjected to discrimination in an education program or activity that receives federal financial assistance.” The statute also expressly authorizes the Department of Education to issue rules and regulations to implement those prohibitions. (The otherwise-wonderful “Rebel Girls” podcast episode on Rep. Patsy Mink refers to Title IX as the Ninth Amendment to the Constitution. If only…)

Just as major questions have arisen in recent years with regard to how Title VII of the Civil Rights Act of 1964 (which prohibits various forms of discrimination in the workplace) applies to discrimination based upon sexual orientation and/or transgender status (which the Court largely resolved in its June 2020 ruling in the Bostock case, holding that Title VII does apply to discrimination against LBGTQ+ employees), the same issues have arisen in the context of Title IX.

After a thorough notice-and-comment process, the Department of Education in April released a 1577-page final rule that, among lots of other things, implements its understanding of how Title IX applies in such cases—including interpreting sex-based discrimination for purposes of the statute to “includ[e] discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” (For the sake of this discussion, I refer to this as the “definitional” provision, although there are others.)

The rule does lots of other things, too—many of which have nothing whatsoever to do with gender identity. As the Justice Department noted in its emergency applications:

Among other things, the Rule clarifies the definitions of more than a dozen terms used in the Title IX regulations, including “complaint,” “complainant,” “disciplinary sanctions,” “elementary school,” “party,” “postsecondary institution,” “relevant,” “remedies,” and “respondent.” The new definition of “complainant,” for example changes existing regulations by allowing complaints by former students and employees who suffered discrimination while participating or seeking to participate in a covered program or activity. The Rule addresses recipients’ obligations in responding to claims implicating Title IX, including measures to assist impacted parties, employee-notification requirements, Title IX coordinator duties, applicable grievance procedures, and protection of personally identifiable information. The Rule amends various administrative requirements, including recipients’ notice of nondiscrimination and recordkeeping obligations. The Rule strengthens protections for pregnant and postpartum students and employees, including by requiring access to lactation spaces and “reasonable modifications” for pregnant students, such as restroom breaks. The Rule clarifies recipients’ obligations with respect to retaliation, including by defining prohibited retaliation. And the Rule affirms the legal rights of parents and guardians to act on behalf of complainants and respondents.

Another good example of parts of the rule that have nothing to do with gender identity are those provisions specifying how schools should handle Title IX discrimination complaints administratively—and, in the context of student-vs.-student complaints, a lot of details with respect to what processes are permitted (or required).

Nevertheless, almost as soon as the proverbial ink on the rule was dry, dozens of lawsuits were filed challenging how it. As relevant here, 10 red states¹ and a number of local governments within those states brought lawsuits challenging the rule—including one in Kentucky and two (that were consolidated) in Louisiana. (Two private plaintiffs were also allowed to intervene in the Kentucky case.) The lawsuits principally focused on three of the hundreds of provisions in the Title IX rule—(1) the definitional provision quoted above; (2) a second provision clarifying the Department’s view that Title IX itself prohibits any school policy or practice that “prevents a person from participating in an education program or activity consistent with the person’s gender identity” (e.g., access to restrooms) because it “subjects a person to more than de minimis harm on the basis of sex”; and (3) a third provision that specifies when “hostile-environment harassment” can violate Title IX. In all three cases, the challengers argued that these interpretations were not supported by Title IX itself—and thus exceeded the Department’s authority to implement the statute. As the Department of Justice pointed out, though, the challengers never argued that they want to violate the definitional provision—to discriminate against transgender individuals because of their transgender status. The putative harms that the challengers identified all stemmed from the second and third of the challenged provisions—the “de minimis harm” and “hostile-environment harassment” provisions.

Both district courts nevertheless issued preliminary injunctions barring enforcement of the entire Title IX rule in the (10) plaintiff states—including the hundreds of provisions that have nothing whatsoever to do with gender identity, and that neither set of plaintiffs had challenged. The federal government then sought partial stays of the district court injunctions—not as applied to the “sex-separated facilities” and “hostile-environment harassment” provisions, but only to allow the rest of the rule, including the definitional provision, to go into effect in those 10 states. Divided panels of both the Fifth and Sixth Circuits rejected those requests, at which point the government sought the same partial relief from the Supreme Court.²

In other words, as the government’s applications reached the Supreme Court, no one was trying to put back into effect the provisions relating to sex-separated facilities and hostile-environment harassment. Thus, the federal government asked the Court for only “partial” stays of the lower-court injunctions in both cases.

If this sounds familiar, it’s because it is. When Idaho successfully sought emergency relief from the Supreme Court in April to put its ban on gender-affirming medical care for transgender adolescents back into effect, it made similar arguments. It didn’t seek a stay of the injunction as applied to the plaintiffs in that case; it sought a stay of the injunction as applied to the state law in all other cases. The Court didn’t write a majority opinion in that instance, but Justice Gorsuch’s concurrence focused on that precise point—that the scope of the district court’s injunction was unduly broad. If the Court was to be consistent, the Solicitor General argued, it should grant similar relief here.

The Majority Opinion

As you know by now, the Court denied the applications. In an unsigned, 2.5-page majority opinion (that sure reads in various places like it was written by Justice Kavanaugh—who, as Circuit Justice for the Sixth Circuit, was one of the two justices to whom the applications were directed), the Court held that the government hadn’t met its burden to show that the provisions it was seeking to put back into effect could be “severed” from the provisions it had agreed should remain blocked. Here’s the only actual substantive analysis in the opinion:

In this emergency posture in this Court, the burden is on the Government as applicant to show, among other things, a likelihood of success on its severability argument and that the equities favor a stay. On this limited record and in its emergency applications, 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. Moreover, related to the equities, the Sixth Circuit has already expedited its consideration of the case and scheduled oral argument for October.

There are at least four problems with this analysis.

1. Ignoring the Federal Government’s Severability Arguments: As the quoted passage notes, the majority explained that the federal government had not “adequately identified which particular provisions, if any, are sufficiently independent of the enjoined definitional provision and thus might be able to remain in effect.” But the government’s briefs are replete with such examples. Consider the Rule’s new requirement of access to lactation spaces and “reasonable modifications” for pregnant students, such as restroom breaks. How does that have anything to do with the challenged provisions? The Court simply asserts that the government failed to provide examples of those kinds of provisions; I lifted that one directly from the government’s applications.

2. Inconsistency on Severability: It also seems worth emphasizing that the Court never held the Trump administration to a similar burden with regard to the severability of an injunction. In case after case, the Court stayed nationwide injunctions against Trump policies (especially in the immigration space), with the only separate opinions suggesting that the problem with those injunctions was their scope. In a world in which severability is supposed to be part of the stay analysis, a justice who thought that the issue with those injunctions was that they provided relief to non-plaintiffs should have voted to leave those injunctions in place at least as applied to the named plaintiffs. There are precisely zero examples of that kind of difference-splitting in Trump-era rulings on emergency applications.

3. The “Enjoined Definitional Provision”: Putting aside the problems with the severability analysis itself, it rests on a remarkably problematic holding of its own—that the “enjoined definitional provision” (the part that the majority insists is un-severable from the rest of the rule) should stay enjoined. As I already noted, the Solicitor General had argued that the challengers failed to identify how they were injured by that provision—as opposed to the de minimis harm and hostile-environment harassment provisions. The federal government also argued, in perhaps the most important part of its briefs, that the definitional provision is likely to be upheld on the merits—after and in light of Bostock. Thus, the federal government conceded only that it wasn’t seeking stays of the injunctions as applied to those latter two provisions; it definitely did want the definitional provision to go back into effect.

   However persuasive you may find the Solicitor General’s arguments about the challengers’ lack of injury or the government’s likelihood of success on the merits, the majority … didn’t address them at all. Instead, it mis-described the relief the government sought: “the Government argues (and the dissent agrees) that [all three] provisions should be severed and that the other provisions of the new rule should still be permitted to take effect in the interim period while the Government’s appeals of the preliminary injunctions are pending in the Courts of Appeals.” In other words, the majority wrongly claimed that the federal government accepted the injunctions of the “enjoined definitional provision.” Not only did this rather remarkable mis-reading of the federal government’s briefs absolve the Court from having to address the argument that the definitional provision should go back into effect, but it was the definitional provision that formed the basis for the severability discussion. In other words, the entire “logic” of the majority opinion rests upon a concession that the federal government … never made—and injunctions of a provision that, as the federal government explained, the Court is likely to uphold.

4. Satisfying Equity Through Expedition: Finally, there’s the remarkable suggestion that the “equities” (i.e., the irreparable harm the federal government claimed the overbroad injunctions are causing) is addressed by the fact that the Sixth Circuit is moving quickly to decide its appeal. Of course, if the injunctions are causing “irreparable” harm (which, given that none of the Rule is going to go into effect in the plaintiff states during the 2024-25 school year, seems pretty easy to assume), it ought not to matter how soon someone else might make that irreparable harm go away; even “minimal periods” of irreparable harm ought to suffice—as the Court has previously held. But this is also the very same Court that held, just six weeks ago, that applicants need only make a “substantial” showing of irreparable harm to satisfy that prong of the equitable analysis—not that they have to show that their harm outweighs the harm that the relief they’re seeking would cause. Yet again, the Court is being patently inconsistent—and here, across a far-shorter time horizon.

The Dissent

It should therefore have been easy work for the dissent to pick the majority opinion apart. But whether because it reflects a series of compromises to ensure that Justice Gorsuch would join it, or because it was written too quickly, the dissent opens, after a brief summary of the background, by stating that “Every Member of the Court agrees respondents are entitled to interim relief as to three provisions of that Rule.”

There are three different problems with the dissent’s … remarkable … opening. First, whether the states were “entitled to interim relief” just wasn’t the question the Court was supposed to be deciding. Second, it wasn’t the question the Court actually decided. And third, at least with respect to the first provision, as noted above, I don’t imagine for a moment that (at least three of) the dissenters actually believe that.

1. What the Court is (Supposed to be) Deciding: At the emergency application stage, the question is whether the applicant (here, the federal government) is entitled to stays of district court injunctions—not whether the injunctions were themselves valid. There are plenty of contexts in which appellate courts might correctly stay valid injunctions, or correctly refuse to stay invalid ones. Thus, even if the injunctions should have been entered against the three provisions principally at issue, that would not resolve the federal government’s entitlement to stays thereof.

2. What the Court “Agrees” On: Leaving aside its mis-articulation of what the Court was asked to do, the statement also invited the majority to pounce—writing that “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.” But just as the dissent mis-described what the Court was being asked to do, the majority mis-described what it actually did. There was no discussion, across the 2.5 pages of the majority opinion, of whether the plaintiffs “were entitled” to preliminary injunctive relief; the whole crux of the analysis was why the federal government was not entitled to stays. This is especially galling given the majority’s sleight-of-hand with the “central provision”—which it did not analyze at all; it simply (and wrongly) claimed the government wasn’t seeking to put it back into effect. Such a conclusory holding in a majority opinion should never have been possible, and yet the dissent not only invited it; it did nothing to push back against it.

3. Back to the “Enjoined Definitional Provision”: Finally, and related to what “all members of the Court” agreed on, I’m also rather surprised that the dissent simply acquiesced in the majority’s treatment of that same “enjoined definitional provision”—effectively endorsing the majority’s indefensible claim that the federal government was willing to leave that provision blocked. Not only is that simply false, but had the justices undertaken any analysis of the definitional provision’s merits, I have to think that at least three of the dissenters (and perhaps Justice Gorsuch, given his role in Bostock) would believe that the federal government has a substantial likelihood of success. And yet, instead of pushing back on either of these points, Justice Sotomayor simply wrote that “I would stay the preliminary injunctions except as to the three provisions above.” In other words, the dissent not only silently acquiesced in the majority’s misrepresentation of the government’s position with respect to the definitional provision, but the effect of that move was to remove from public sight the most significant substantive dispute among the justices, i.e., whether, for purposes of Title IX, discrimination based upon gender identity is a form of discrimination based upon sex.

The Implications—for Title IX and for the Court

It’s entirely possible that I’ve long-since lost you in the weeds. If so, my apologies; there’s a lot going on here. But if you’re still reading, there are two sets of implications here—one for the Title IX Rule itself; and one for the Court’s approach to emergency applications.

Taking Title IX first, the entire rule remains blocked in the 10 states who were before the Supreme Court. Other injunctions against specific provisions remain in effect in another 16 states; the Rule is otherwise in effect in its entirety almost everywhere else. If this sounds like an enormous headache, it is. To be sure, there was no perfect solution here; even the relief the federal government was seeking would have led to different enforcement of the de minimis harm and hostile-environment harassment provisions in roughly one-half of the country versus the other. But now we have at least three different sets of rules. And as the dissent (quite rightly) points out, “Individuals in the respondent states will be deprived of guidance related to their rights under Title IX, of updates to the processes schools must follow in investigating their complaints of sex discrimination, of protections from retaliation should they file a complaint, and of much more.”

No matter how quickly the courts of appeals move to resolve these cases, that deprivation and the broader discordance in enforcement will persist—until and unless the Supreme Court conclusively resolves the challenges to the Rule.

Of course, by the time that happens, we will definitely have a new President. And it stands to reason that a Secretary of Education (or, more likely, Acting Secretary) appointed by President Trump would rescind the Rule long before these disputes return to the justices. But in a world in which Vice President Harris is elected this November, it seems likely that these disputes will end up back in the Supreme Court—perhaps as early as this time next year. Either way, the future of these interpretations and implementations of Title IX is … difficult to predict.

Second, as for the Supreme Court and emergency applications, Friday’s ruling provides yet another object lesson in how poorly the justices have fared when grappling with complicated legal questions in the truncated context of emergency litigation. Some of that is, quite clearly, not the Court’s fault; we’re talking about hundreds of pages of legal arguments respecting a 1577-page federal regulation; it’s inevitable that some things are going to be missed. But at least with respect to Friday’s ruling, the justices didn’t decide this case overnight; the federal government filed its applications on July 22, i.e., 25 days before the Court ruled. There was also no imminent deadline forcing the Court to rule by Friday; the Rule’s effective date was August 1. Once the Court missed that, why not take the time to get it absolutely right?

And especially when there’s a majority opinion, it is incumbent upon those who don’t join it to scrutinize the majority’s writing with care to make sure that they are not endorsing points they don’t wish to endorse—scrutiny that, in this case, it doesn’t look like the dissenters undertook.

In all, then, the Title IX ruling is yet another example of how poorly the Court fares when it tackles major questions through the ad hoc procedures governing emergency applications—with significant implications not just for Title IX’s effects in 10 states, but for how the Court handles similar questions going forward.

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SCOTUS Trivia: “Per Curiam”

Keeping with the focus on Friday’s ruling, I thought I’d use the trivia to make three pedantic points about the circumstances in which the Court issues a majority opinion “per curiam.”

First, unlike what’s true in some jurisdictions, as Friday’s ruling shows, a “per curiam” opinion doesn’t necessarily reflect unanimity; it merely reflects that the Court, for whatever reason, did not want to identify the author. That happens even in argued cases sometimes, e.g., when the disposition is especially brief; when the original author loses the majority opinion; or when the Court is moving with especial dispatch. And, at least until recently, it was the norm that all majority opinions respecting emergency applications were unsigned. One other quirk is that, whenever the majority opinion is unsigned, we also don’t necessarily know the vote count; we only did on Friday because four justices publicly dissented—and the process of elimination did the work from there.

Second, as I noted in June, the Court in Ohio v. EPA broke from the norm of having every majority opinion respecting an emergency application come down unsigned. But the unsigned nature of this one suggests that, going forward, some will be signed (maybe if they’re argued?) and some won’t be.

Finally, and this is almost the very definition of trivia, one other point that separates “per curiam” opinions from signed opinions of the Court is the provision of a “syllabus” at the front of the ruling purporting to summarize the Court’s holding. By the time these opinions make it into the (official) United States Reports, every opinion of the Court is accompanied by a syllabus prepared by the Reporter of Decisions. But all per curiam opinions, whether handed down from the bench or remotely; whether respecting emergency applications or argued cases; come down at least initially without a syllabus. This can make it difficult, in particular, for members of the media trying to summarize what the Court actually held (most famously with Bush v. Gore—and earlier this Term with Gonzalez v. Trevino). As for why signed opinions always get syllabi upon their release, but unsigned opinions only get them once they’re officially published, if you have any explanation for that distinction, I’m all ears.

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1. The states before the Supreme Court are Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Virginia, and West Virginia

2. There are narrower injunctions currently barring enforcement of the challenged provisions in additional states—including Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah, and Wyoming. In all, those provisions are thus blocked in 26 states.