In State of Tennessee v. Department of Education, (6th Cir., June 14, 2024), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that a "Dear Educator" Letter and accompanying Fact Sheet from the Department of Education interpreting Title IX should be set aside because they amount to a legislative rule which did not go through the required notice and comment procedure. At issue are documents from DOE interpreting Title IX's ban on sex discrimination as covering discrimination based on sexual orientation and gender identity in education programs and activities that receive federal financial aid. The suit challenging these documents was brought by 20 states whose policies on separate sex programs are based on biological sex. In a footnote, the majority added:
We are aware that the Federal Register recently published a final rule amending the Department of Education’s Title IX regulations.... This new rule does not moot this case for two reasons. First, the final rule does not go into effect until August 2024. Second, the final rule does not cover everything that is covered by the documents, like housing and athletics.
Judge Boggs dissented, contending that plaintiffs lacked standing to bring the lawsuit, saying in part:
... [T]he Interpretation, “Dear Educator” Letter, and Fact Sheet ,,, are interpretative rules or policy statements, which are generally not final for purposes of judicial review under the Administrative Procedure Act.....
I agree that the Documents are intended to have in terrorem effect on states and school districts such as the plaintiffs. They clearly can be interpreted as desiring a change in voluntary policies by recipients of federal funding. However, the same could be said of a major Presidential address or a Secretarial campaign targeting the States with speeches and public statements.
