One of the most popular breakout sessions at the recent Moms for Liberty national conference at a downtown hotel here focused on one of many education topics that has the focus of the conservative grassroots group—Title IX.
The session focused on the U.S. Department of Education’s recently promulgated final regulation for the 1972 federal statute, which bars sex discrimination in federally funded schools and colleges. The regulation, among other things, interprets the statute to protect students on the basis of sexual orientation and gender identity.
That doesn’t sit well with Moms for Liberty, whose conference also included sessions such as “Crafting parental rights laws with teeth” and “Protecting kids from secret gender transitions in schools.” The conference also heard from former President Donald Trump, who notably didn’t say much about education, though he did attract attention for suggesting that public schools were facilitating students’ gender transitions.
“We don’t want to stop Title IX,” said Kimberly S. Hermann, the executive director of the Southeastern Legal Foundation, a conservative legal organization that represent Moms for Liberty in litigation over the regulation. “We want to save Title IX. We want to stop the changes to the regulations.”
Moms for Liberty and the Southeastern Legal Foundation, the non-profit legal organization that represents it, celebrated their role in one of several lawsuits that have led courts to block the regulation in roughly half the country.
In a session sometimes interrupted by cheers and whooping by the Moms for Liberty members, Hermann’s colleague Braden Boucek, the vice president of litigation for the Roswell, Ga.-based group, said, “We’ve been prevailing so far. We certainly still have a long way to go. But right now, things are going well.”
Groups’ legal maneuver expands the scope of Title IX injunctions
Last month, the U.S. Supreme Court declined the Biden administration’s request to allow much of the Title IX regulation to take effect in at least some of the states where it is blocked.
Moms for Liberty is involved in one challenge that technically wasn’t the subject of the Supreme Court’s emergency action. The group’s litigation has a unique feature that is being felt well beyond the 26 conservative-leaning states where the regulation is blocked statewide.
In a lawsuit in which four states—Kansas, Alaska, Utah, and Wyoming—challenged the regulation, Moms for Liberty and two other groups were also plaintiffs in the case before a federal district judge in Kansas.
“Every one of these injunctions has been localized to states that participated in the lawsuit,” Boucek said. “So unfortunately, if you’re in a blue state that didn’t participate in a lawsuit, you’re just kind of out of luck—unless you’re part of our lawsuit.”
Because Moms for Liberty was suing as an association, Boucek argued, any relief granted by a court should apply to all members of the group, or “to each and every one of the members, no matter where they are.”
What the Kansas federal judge agreed to do was allow Moms for Liberty and the two other private groups in that case, Young America’s Foundation and Female Athletes United, to block the new Title IX regulation at any school where a member or a member’s child attends school, even if they are in states that did not challenge the regulation.
That, said Boucek, gives “Moms for Liberty an effective veto anytime they want to get out of the Title IX regulation in their schools, no matter where they are.”
The audience in the session cheered and whooped some more.
The judge also allowed Moms for Liberty and the other group to recruit new members and add their children’s schools to the list of those where the regulation is blocked. That has led Moms for Liberty to step up its recruiting. And the groups just last week filed a fourth list of schools and colleges where their members or members’ children attend, totaling hundreds of educational institutions in every state where there is no statewide injunction.
“The bad news is we [have to] function as a clearinghouse for all this data,” Boucek said.
The federal Education Department is maintaining a link to the school-by-school lists.
A ‘messy and confused’ situation in the schools
The U.S. Department of Justice, representing the Education Department, has appealed the Kansas court’s injunction to the U.S. Court of Appeals for the 10th Circuit, in Denver.
The Biden administration, however, has not made specific arguments against the school-by-school approach that has greatly expanded the areas where the regulation is blocked, though any appellate ruling lifting or undoing the injunction would affect that provision.
For school administrators, and their legal advisers, the ongoing legal battles over the Title IX regulation have been a source of uncertainty and bafflement.
“This got very messy and confused,” said Justin Petrarca, an education lawyer in Chicago whose firm represents some 100 school districts in Illinois.
He said he is getting calls every day from his clients as schools seek to accommodate transgender students or have other questions about Title IX and its regulations.
Illinois is not one of the 26 states subject to a statewide injunction blocking the new regulation. But there are some 200 Illinois schools that appear on the lists filed by Moms for Liberty and the other two private groups.
Petrarca said he has one suburban Chicago school district client where one high school is on the list and the other isn’t, as well as another district where about half the schools are on the list and the other half aren’t.
“Some of these communities have active Moms for Liberty chapters, and [the parents] have been quick to inform the schools where their children attend,” he said.
While the new Title IX regulation is blocked on its face from applying to the schools on the list, Petrarca and other education lawyers are advising their school district clients that they can still take steps to protect students based on gender identity and sexual orientation.
For one thing, the injunctions apply to the federal Education Department and where it may currently implement the new rule, the experts say. Petrarca noted that even the Kansas district judge wrote in his opinion that “nothing in this order limits the ability of any school to adopt or follow its own policies, or otherwise comply with applicable state or local laws or rules regarding” issues such as gender identity.
In Illinois, there is a state law that protects students based on sexual orientation and gender identity, as well as case law from the U.S. Court of Appeals for the 7th Circuit, the Chicago-based court that covers Illinois, Indiana, and Wisconsin, that says Title IX protects transgender students.
Different Title IX rules apply depending on whether a school is subject to an injunction
Sonja Trainor, the executive director of the National Association of School Attorneys, said at least one other federal appeals court has issued a ruling that Title IX protects students based on gender identity. That is the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
She said that given the Kansas judge’s admonishment that other laws and legal rulings may be relevant, “there may be greater legal risk in adopting policies contrary to applicable law than in following a district court order in another jurisdiction in a case in which it was not a defendant.”
Trainor, whose group is made up of more than 1,200 school lawyers across the country, said that in districts where some schools are on the non-enforcement list and some aren’t, administrators are applying the new regulation where they can and defaulting to the Education Department’s 2020 regulation for the schools on the list.
“But that approach may be unworkable in a district with district-wide programs including athletic teams, career programs that have students from all district high schools, … and academic programs in which middle school students take classes at some high schools,” Trainor said.
All this means is that, for possibly the better part of this school year, the legal landscape over Title IX enforcement will remain complicated. The Supreme Court, in its short opinion last month refusing the limit two of the injunctions, noted that appeals of the injunctions were moving forward and that it “expects that the Courts of Appeals will render their decisions with appropriate dispatch.”
In other words, this likely isn’t the last time the nation’s high court will have to weigh in.
