Trump Administration Withdraws Obama Title IX Transgender Guidance

Today the Trump Administration withdrew the controversial Obama Administration's Guidance on rights of transgender students under Title IX. In a Joint Letter (full text) from the Department of Justice and Department of Education, the Trump Administration formally took no position on whether Title IX protects transgender students.  The Letter reads in part:

These [Obama Administration] guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX ... and its implementing regulations ... require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.

This interpretation has given rise to significant litigation regarding school restrooms and locker rooms....

In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.

In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.

The Solicitor General's Office also sent a letter (full text) to the Supreme Court notifying it of the Guidance withdrawal.  Oral argument is scheduled March 28 in the Gloucester County School Board case involving the Obama Administration's interpretation of Title IX.  The Supreme Court specifically granted certiorari on two issues (see prior posting), only one of which would appear to be mooted by yesterday's action.  The two issues are:

... [S]hould deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?

... With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?

The New York Times reports that Education Secretary Betsy DeVos had opposed withdrawal of the Guidance that protected transgender students, but that the President sided with Attorney General Sessions.  The new Joint Letter does contain a paragraph expressing concern for student rights:

Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.

Both Attorney General Sessions and Secretary DeVos issued separate statements as well.  Sessions' statement (full text) reads in part:

The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.

DeVos' statement (full text) reads in part:

I have dedicated my career to advocating for and fighting on behalf of students, and as Secretary of Education, I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.

Today's Joint Letter only refers to the interpretation of Title IX.  It is unclear how this will affect the similar interpretation of Title VII of the 1964 Civil Rights Act.  The EEOC has interpreted the reference to sex discrimination in Title VII to protect transgender employees. Indeed, a December 15, 2014 Memorandum (full text) from Attorney General Holder to U.S. Attorneys takes the same position on Title VII.

Trump Responds To Anti-Semitic Incidents In U.S.

President Trump today in remarks (full text) after touring the National Museum of African American History and Culture gave his most explicit denunciation of the increasing number of anti-Semitic incidents in the U.S. in recent weeks.  He said:

This tour was a meaningful reminder of why we have to fight bigotry, intolerance and hatred in all of its very ugly forms.  The anti-Semitic threats targeting our Jewish community and community centers are horrible and are painful, and a very sad reminder of the work that still must be done to root out hate and prejudice and evil.

As reported by CNN, Trump's remarks come after 54 Jewish Community Centers in the U.S. and Canada have received 69 bomb threats. Also today, it was disclosed that more than 100 headstones at a Jewish cemetery near St. Louis were recently damaged or toppled. (CNN). The President has been criticized for his less than direct responses in two previous news conferences to questions about anti-Semitism. (e.g. Baltimore Sun editorial). Responding to the President's statement, American Jewish Committee tweeted: "Now we look forward to your plan of action."

Jewish Groups Criticize Trump's Response To Questions About Anti-Semitism

JTA reports that the American Jewish Committee and the Anti-Defamation League have issued statements criticizing President Donald Trump's response at his news conference yesterday to a question from reporter Jake Turx of Ami Magazine regarding anti-Semitism.  Here is a transcript of much of the exchange taken from the White House's full transcript of the news conference:

Q    ... [W]hat we are concerned about, and what we haven’t really heard be addressed is an uptick in anti-Semitism and how the government is planning to take care of it.  There have been reports out that 48 bomb threats have been made against Jewish centers all across the country in the last couple of weeks.  There are people who are committing anti-Semitic acts or threatening to --

THE PRESIDENT:  You see, he said he was going to ask a very simple, easy question.  And it’s not.  It’s not.  Not a simple question, not a fair question.  Okay, sit down.  I understand the rest of your question.

So here’s the story, folks.  Number one, I am the least anti-Semitic person that you’ve ever seen in your entire life.  Number two, racism -- the least racist person.  In fact, we did very well relative to other people running as a Republican....

... See, he lied about -- he was going to get up and ask a very straight, simple question.  So you know, welcome to the world of the media.  But let me just tell you something -- that I hate the charge.  I find it repulsive.  I hate even the question because people that know me -- and you heard the Prime Minister, you heard Netanyahu yesterday -- did you hear him, Bibi?  He said, I’ve known Donald Trump for a long time, and then he said, forget it.

So you should take that, instead of having to get up and ask a very insulting question like that.

The AJC's statement also criticized Trump's non-responsiveness to a similar question at his news conference (full transcript) on Wednesday with Israeli Prime Minister Netanyahu.

Trump Keeps Special Envoy For LGBTI Rights At State Department

Foreign Policy this week reports that  the Trump Administration has decided to keep Obama-appointee Randy Berry in his State Department position of Special Envoy for the Human Rights of LGBTI Persons. According to Foreign Policy:

The special envoy position was created during the Obama years to fight back against the discrimination of lesbian, gay, bisexual, and transgender people around the globe. Conservative groups have called the office an attempt to “entrench the LGBTI agenda” into the United States government, and accuse it of browbeating countries opposed to gay-friendly school textbooks and same-sex marriage.

Berry repeatedly stressed that his goal was to convince foreign governments to stop violence against gays and lesbians rather than pressure every nation to allow same-sex marriage. 

Berry, who is an openly gay career Foreign Service officer, will also stay on as deputy assistant secretary to the Bureau of Democracy, Human Rights, and Labor, a position to which he was appointed in the last hours of the Obama administration. Christian evangelical groups had called for Trump to dismiss Berry.

New Suit Challenges Syrian Refugee Ban In Trump Executive Order; Hawaii Suit Moves Ahead

The portion of President Trump's travel ban Executive Order which suspends entry of refugees from Syria into the United States was challenged in a lawsuit filed on Monday in a Wisconsin federal district court by a Sunni Muslim who was granted asylum status because of torture and religious persecution he had
suffered in Syria.  The complaint (full text) in Doe v. Trump, (WD WI, filed 2/13/2017), says that the ban prevents plaintiff from bringing his wife and 3-year old daughter to the U.S. from Syria under a derivative asylum petition which is being processed by the government. The Executive Order prevents USCIS from adjudicating the petition and the State Department from issuing visas to his family.  It also contends that the nationwide temporary restraining order issued by a Washington federal district court is not broad enough to cover this situation because the TRO applies only to enforcement at "United States borders and ports of entry." This new suit alleges that the Executive Order violates the Establishment Clause, the Equal Protection and Due Process clauses and various statutory provisions. WRN News reports on the lawsuit.

Meanwhile, Hawaii's Attorney General announced yesterday that a federal district judge has partially lifted a stay he imposed last week on Hawaii's suit against the Executive Order. This allows an Hawaii resident to be added as a plaintiff.  The court also allowed Hawaii to file an amended complaint (full text) adding a challenge under the Religious Freedom Restoration Act. KHON News reports on these developments.

Virginia Federal Judge Says Trump Travel Ban Likely Violates Establishment Clause

Yesterday another court ruled against President Trump's Executive Order that temporarily bars entry into the country of individuals from seven majority-Muslim nations.  In Aziz v. Trump, (ED VA, Feb. 13, 2017), a Virginia federal district court concluded that Virginia had produced unrebutted evidence that it is likely to succeed on its Establishment Clause claim, saying in part:

The "Muslim ban" was the centerpiece of the president's campaign for months.... [Rudy] Giuliani said two days after the EO was signed that Trump's desire for a Muslim ban was the impetus for this policy.

The court enjoined enforcement of Section 3(c) of the Executive Order at any port of entry against Virginia residents how either were lawful permanent residents or who held a valid student visa or work visa at the time the Executive Order was signed. NBC4 News reports on the decision.

9th Circuit Upholds TRO Against Trump's Travel Ban On Due Process Grounds; Postpones Ruling On Religious Discrimination Issue

The U.S.9th Circuit Court of Appeals today, in a unanimous decision, refused to stay the Washington federal district court's temporary restraining order against enforcement of President Trump's Executive Order titled "Protecting the Nation From Foreign Terrorist Entry Into the United States." The opinion in State of Washington v. Trump, (9th Cir., Feb. 9, 2017), concludes that the government "has failed to establish that it will likely succeed on its due process argument in this appeal."  The court put off addressing plaintiffs' religious discrimination arguments, saying:

The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye,Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decision makers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose).

The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.

Class Acton Lawsuit Filed Against Travel Ban

On Tuesday, another lawsuit was filed challenging President Trump's so-called travel ban Executive Order.  This suit was brought on behalf of two refugee agencies-- International Refugee Assistance Project and HIAS--and by several individuals.  The complaint (full text) in International Refugee Assistance Project v. Trump, (D MD, filed 2/7/2017) asks a Maryland federal district court to certify the suit as a class action on behalf of all persons in the United States for whom the Executive Order interferes with family reunification or with the ability to travel internationally and return to the U.S.  The complaint includes claims based on the Establishment Clause, Equal Protection Clause and Religious Freedom Restoration Act, among others, and contends:

President Trump has repeatedly made clear his intent to enact policies that exclude Muslims from entering the United States and favor Christians seeking to enter the United States.

HIAS issued a press release announcing the filing of the lawsuit.

More Primary Source Material On Travel Ban Challenge-- Briefs Are In; Oral Arguments Tomorrow

A flurry of filings have been submitted to the U.S. 9th Circuit Court of Appeals in the U.S. government's attempt to obtain a stay of the temporary restraining order against enforcement of much of President Trump's immigration and refugee executive order. Both sides have filed memoranda supporting their positions.  In addition, eight amicus briefs have been filed.  Links to all the filings are available on the 9th Circuit's website. The court will hear oral arguments by telephone on Tuesday, February 7, 2017 at 3:00 p.m. PST and will promptly make recordings publicly available. New York Times reports on developments.

Hawaii Sues Trump Over Travel Ban

Last Friday, the state of Hawaii filed a lawsuit against President Donald Trump challenging his Executive Order imposing a travel ban on individuals from seven Muslim countries and imposing a moratorium on refugee admissions. The complaint and Memorandum in Support (full text of press release, complaint and Memorandum in support of TRO) in State of Hawai'i v. Trump, (D HI, filed 2/3/2017) particularly emphasize Establishment Clause concerns with the Executive Order. Plaintiff's Memorandum in Support states in part:

The President and his aides have made it abundantly clear that they intend to exclude individuals of the Muslim faith, and that this Order—which bans travel only with respect to certain Muslim-majority countries—is part of that plan....  Sections 5(b) and 5(e) also explicitly direct the government to prioritize religious refugee claims if the “religion of the individual is a minority religion in the individual’s country”—a system of religious preference that President Trump told the media was expressly designed to favor Christians....

In the Establishment Clause context, these statements matter. Because Lemon’s first step is concerned with “whether [the] government’s actual purpose is to endorse or disapprove of religion,” courts routinely look to the public declarations of an act’s originator to discern its true aim.

West Hawaii Today reports on the lawsuit.

Washington Federal District Court Issues TRO Against Travel Ban; Appeal Filed-- Here Are Links To Primary Sources [UPDATED]

As widely reported, a Washington federal district court yesterday issued a nation-wide temporary restraining order against key portions of President Trump's Executive Order that temporarily banned entry of individuals from seven Muslim-majority countries and restricted entry of refugees, particularly those from Syria. (See prior posting.) The temporary restraining order (full text) in State of Washington v. Trump, (WD WA, Feb. 3, 2017), does not set out which of plaintiffs' arguments were persuasive to the court.  Those arguments, as set out in the complaint (full text), include establishment clause, due process and equal protection claims as well as statutory claims. Washington's Attorney General has provided links to all documents in the case. The court has posted a video of the full oral arguments and judge's ruling in the case.  Americans United filed an amicus brief (full text) with the district court setting out at length the Establishment Clause arguments. As reported by The Hill, this evening the Justice Department filed a notice of appeal (full text) in the case with the 9th Circuit. According to CNN, focusing on the court's designation of the motions panel for February:

The three judges who will likely hear the appeal -- assuming no one has to step aside over any conflicts -- are: Judge William Canby, who was appointed by President Jimmy Carter; Richard Clifton, who was appointed by Bush; and Michelle Friedland, a President Barack Obama appointee.

UPDATE: On Saturday night (2/4) the 9th Circuit denied an immediate stay of the district court opinion pending briefing by Monday on the emergency motion. (Full text of 9th Circuit's order). The order was issued by Judges Canby and Friedland.

UPDATE2: Also on Feb. 3, a Massachusetts federal district court refused to renew a temporary restraining order that had prevented detention and/or removal of individuals with approved refugee applications who would be legally admitted to the United States in absence of President Trump's Executive Order. The original TRO expired Feb. 5.  The court in Louhghalam v. Trump, (D MA, Feb. 3, 2017) held that rational basis review applies to equal protection challenges to federal government categorizations with respect to non-resident aliens.  It held that plaintiffs raising establishment clause objections lacked standing to do so.  It added:

Moreover, the language in Section 5 of the EO is neutral with respect to religion. Plaintiffs submit in their amended complaint that Section 5 favors Muslims over Christians, in violation of the Establishment Clause. The provisions of Section 5, however, could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian. Nothing in Section 5 compels a finding that Christians are preferred to any other group.

ACLU has links to all the pleadings in the Louhghalam case.

Draft Executive Order Would Expand Free Exercise Protections

The Nation reported yesterday on a leaked copy of a draft Executive Order on Religious Freedom which is currently being circulated by the White House, saying:

The draft order seeks to create wholesale exemptions for people and organizations who claim religious or moral objections to same-sex marriage, premarital sex, abortion, and trans identity, and it seeks to curtail women’s access to contraception and abortion through the Affordable Care Act. 

The draft titled Establishing a Government-Wide Initiative to Respect Religious Freedom is set out in full in The Nation report.  The Order provides in part:

“Religious organization” shall be construed broadly to encompass any organization, including closely held for-profit corporations, operated for a religious purpose, even if its purpose is not exclusively religious, and is not limited to houses of worship or tax-exempt organizations, or organizations controlled by or associated with a house of worship or a convention or association of churches.

Sec. 3 Religious Freedom Principles and Policymaking Criteria. All executive branch departments and agencies (“agencies”) shall, to the greatest extent practicable and permitted by law, adhere to the following principles and criteria when formulating and implementing regulations, actions, or policies:

(a) Religious freedom is not confined to religious organizations or limited to religious exercise that takes place in houses of worship or the home. It is guaranteed to persons of all faiths and extends to all activities of life.

(b) Persons and organizations do not forfeit their religious freedom when providing social services, education, or healthcare; earning a living, seeking a job, or employing others; receiving government grants or contracts: or otherwise participating in the marketplace, the public square, or interfacing with Federal, State or local governments....

Trump At National Prayer Breakfast Again Promises Johnson Amendment Repeal

President Donald Trump spoke yesterday at the National Prayer Breakfast. (Full text of remarks.)  In a wide-ranging speech, he reiterated his campaign promise to repeal the Johnson Amendment that restricts non-profits from participating in partisan election campaigns, saying in part:

It was the great Thomas Jefferson who said, “The God who gave us life, gave us liberty.”  Jefferson asked, “Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?”

Among those freedoms is the right to worship according to our own beliefs.  That is why I will get rid of, and totally destroy, the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.  I will do that -- remember.

Not all religious groups favor repeal of the tax code ban on electioneering.  Responding to Trump's remarks, the Baptist Joint Committee issued a press release, saying in part:

Politicizing churches does them no favors. The promised repeal is an attack on the integrity of both our charitable organizations and campaign finance system.

Inviting churches to intervene in campaigns with tax-deductible offerings would fundamentally change our houses of worship. It would usher our partisan divisions into the pews and harm the church’s ability to provide refuge.

Trump Travel Ban Will Not Apply To Israelis Born in Covered Nations

A refinement was announced yesterday to President Trump's Executive Order on entry into the U.S. of nationals of seven Muslim-majority countries.  The modification, which essentially carves out an exception for Jews from those nations now living in Israel, may strengthen arguments of opponents who contend that the Executive Order operates de facto as a "Muslim ban."  The U.S. Embassy in Israel yesterday announced:

Travelers with an existing valid visa in their Israeli passport may travel to the United States, even if they are also a national of or born in one of the seven restricted countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen). Embassy Tel Aviv will continue to process visa applications and issue visas to eligible visa applicants who apply with an Israeli passport, even if born in, or a dual national of, one of the seven restricted countries. Final authorization to enter the United States is always determined at the port of entry.

According to The Forward, some 140,000 Israelis, most older than 65, were born in the 7 countries covered by the travel ban. Around 45,000 were born in Iran and 53,000 were born in Iraq. No doubt almost all of these are Jews who left Arab and Muslim countries in the Middle East to move to Israel. (Background.)

CAIR Sues Over Trump Executive Order

CAIR announced yesterday that it has filed a lawsuit challenging the constitutionality of President Trump's recent Executive Order on refugees and on those entering the U.S. from any of seven Muslim-majority countries. The complaint (full text) in Sarsour v. Trump, (ED VA, filed 1/30/2017) alleges that a hidden purpose of the Executive order (which the complaint calls a Muslim Exclusion Order) is to initiate the mass expulsion of Muslims lawfully living in the U.S. by denying them the ability to to renew their lawful status or receive immigration benefits. Plaintiffs claim that the order violates the Establishment and Free Exercise clauses and denies plaintiffs equal protection of the laws.  Politico reports on the lawsuit.

Lawsuit Challenges Trump Executive Order As Establishment Clause Violation

A direct Establishment Clause challenge to President Trump's Executive Order on immigration and refugees was raised in a lawsuit filed Saturday in a California federal district court in a suit brought on behalf of the People of the United States and of California.  The brief complaint (full text) in People of the United States of America and the State of California v. Trump, (ND CA, filed 1/28/2017) contends that the Executive Order violates separation of powers and is facially unconstitutional under the Establishment Clause because it bars "entry of persons to the United States based on their adherence to religious beliefs shared in certain countries." Politico reports on the lawsuit.

Trump's Immigration Executive Order Faces 1st Amendment Challenges

As reported by the Washington Post, yesterday President Trump signed an Executive Order (full text) suspending for 90 days immigrant and non-immigrant entry into the U.S. of aliens from seven Muslim-majority countries-- Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia. (It should be noted that the countries to which the Executive Order is applicable is discoverable only by elaborate cross references in Sec. 3(c) of the Order that ultimately lead to this list developed last year by the Department of Homeland Security under the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of travelers not eligible to participate in the visa waiver program). The Executive Order does not apply to those entering under various diplomatic visas.

The Executive Order also suspends admission of all refugees for 120 days, and of Syrian refugees for an indefinite period.  It provides that when refugee admissions are resumed:

the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality.

Following up on this provision, Trump told the Christian Broadcasting Network that priority will be given to persecuted Christians in the Middle East, particularly Syria. The Legal Director of the ACLU in a post earlier today argued that the Executive Order's targeting of Muslims and favoring of Christians violates the Establishment Clause. Meanwhile CAIR announced that it will be holding a news conference Monday on a lawsuit that it will file in federal district court in Virginia to "challenge the constitutionality of the order because its apparent purpose and underlying motive is to ban people of the Islamic faith from Muslim-majority countries from entering the United States."

Even Trump's Statement on International Holocaust Memorial Day Is Not Without Controversy

Today is International Holocaust Memorial Day.  The day-- the anniversary of the liberation of Auschwitz-Birkenau-- was chosen by the United Nations General Assembly as the date for the international commemoration. CBS News reports on commemoration activities in various countries.  President Donald Trump issued a Statement (full text) marking the commemoration, saying in part:

It is with a heavy heart and somber mind that we remember and honor the victims, survivors, heroes of the Holocaust. It is impossible to fully fathom the depravity and horror inflicted on innocent people by Nazi terror.

Jonathan Greenblatt, head of the Anti-Defamation League commented on the President's Statement in a Tweet, saying:

Puzzling and troubling White House Holocaust Memorial Day Statement has no mention of Jews. GOP and Democratic presidents have done so in the past.

Other media, such as the Washington Post and  Haaretz make the same point about Trump's statement.

Presidential Proclamation For National School Choice Week

Yesterday President Donald Trump issued a Proclamation (full text) declaring January 22 through January 28 as National School Choice Week. The Proclamation reads in part:

Our country is home to many great schools and many extraordinary teachers -- whether they serve in traditional public schools, public charter schools, magnet schools, private or religious schools, or in homeschooling environments....

As our country celebrates National School Choice Week, I encourage parents to evaluate the educational opportunities available for their children.  I also encourage State lawmakers and Federal lawmakers to expand school choice for millions of additional students.

Trump Reinstitutes Ban On Foreign Aid To NGOs That Promote Abortion Services

As reported by the New York Times, in a Presidential Memorandum (full text) issued yesterday President Trump reinstated the so-called "Mexico-City Policy."  The policy bars U.S. foreign aid dollars from going to nongovernmental organizations that offer abortion counseling or  advocate the right to seek abortions in their home countries.  Other U.S. law already bans the use of taxpayer dollars to fund actual abortion services, but this policy prohibits funds going to organizations even if they use other funds to promote abortion. The policy, originally instituted in 1984 by President Ronald Reagan has been suspended by Democratic presidents and reinstituted by Republican presidents ever since.