6th Circuit Hears Oral Arguments on DOE's Interpretation of Title IX to Include Gender Identity Discrimination

Yesterday the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in State of Tennessee v. Cardona. In the case, a Kentucky federal district court barred enforcement against Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia of the Department of Education's rules that interpret Title IX's ban on sex discrimination to include discrimination against transgender students and faculty by institutions receiving federal financial assistance. Bloomberg Law reports on the oral arguments.

11th Circuit Enjoins New Title IX Rules in 4 States, Pending Appeal

 In State of Alabama v. U.S. Secretary of Education, (11th Cir., Aug. 22, 2024), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, issued an injunction pending appeal barring enforcement in Alabama, Florida, Georgia, and South Carolina of the Department of Education's new rules under Title IX.  The new rules define discrimination on the basis of sex as including discrimination on the basis of gender identity. They also reduce the threshold for concluding that conduct amounts to sex discrimination. The majority pointed out:

Before this action, every court to consider the issue across the nation—seven district courts and two courts of appeals— preliminarily enjoined enforcement of the rule.  The district court here, by contrast, refused to enjoin the rule a day before it was supposed to go into effect.

Judge Wilson dissented contending that plaintiffs have not shown the irreparable injury required for obtaining an injunction. ADF issued a press release announcing the decision.

6 More States Enjoin Enforcement of New Title IX Rules Barring Transgender Discrimination

Yet another court has enjoined the Department of Education from enforcing its new Title IX rules that interpret Title IX's ban on sex discrimination as including a ban on gender identity discrimination. In State of Arkansas v. U.S. Department of Education, (ED MO, July 24, 2024), a Missouri federal district court issued a preliminary injunction barring enforcement against Arkansas, Missouri, Iowa, Nebraska, North Dakota, South Dakota and the individual plaintiff, a student in a school in Arkansas who says the rule violates her religious beliefs.  the court said in part:

After preliminary review and without ultimately deciding the issue, the Court is persuaded that plaintiffs have a fair chance of prevailing on their argument that the reasoning of Bostock, a Title VII employment discrimination case, should not apply to Title IX. ...

Given that notice is the touchstone of Title IX, the statute contains no definition of sex or express prohibition of discrimination on the basis of gender identity, and it expressly permits sex-based differential treatment in certain circumstances, plaintiff States have met their preliminary burden of establishing a fair chance of prevailing on their argument that they lacked constitutionally sufficient notice that sex discrimination would be interpreted as including gender identity discrimination when they accepted federal funding under Title IX.

The court also preliminarily enjoined the new rules' expansion of the definition of harassment, concluding that the definition may violate the 1st Amendment by chilling speech. ADF issued a press release announcing the decision.

Two Additional Courts Enjoin Enforcement of New Title IX Rules

In addition to the nationwide preliminary injunction against enforcement of the Department of Education's new Title IX rules on transgender discrimination (see prior posting), two other federal district court last week issued more geographically limited preliminary injunctions against enforcement of the same rules. In State of Florida v. Department of Health and Human Services, (MD FL, July 3, 2024),  a Florida federal district court enjoined enforcement within Florida, saying in part:

HHS and the Final Rule interpret Title IX, and hence section 1557, to prohibit discrimination based on “gender identity.” 89 Fed. Reg. at 37,699 (45 C.F.R. § 92.101(a)(2)). The Final Rule is stillborn and a nullity if Title IX does not prohibit discrimination on the basis of “gender identity.” The Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity. Adams v. Sch. Bd. of St. John’s Cnty., 57 F. 4th 791, 812–15 (11th Cir. 2022) (en banc). Frankly, this ends the issue—the new Rule appears to be a dead letter in the Eleventh Circuit.

In State of Kansas v. U.S. Department of Education, (D KS, July 2, 2024), a Kansas federal district court issued a preliminary injunction against enforcement of the new rules in Kansas, Alaska, Utah and Wyoming, saying in part:

... [T]he purpose of Title IX was to protect “biological women from discrimination in education[;] [s]uch purpose makes it difficult to sincerely argue that, at the time of enactment, ‘discrimination on the basis of sex’ included gender identity, sex stereotypes, sexual orientation, or sex characteristics.”... The DoE’s reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress’ goals of protecting biological women in education....

... [T]he court finds that the Final Rule involves issues of both vast economic and political significance and therefore involves a major question.... As such, Congress must have given the agency “clear statutory authorization” to promulgate such a Final Rule.....The court finds that Congress did not give such clear statutory authorization to the DoE....

... [T]he Final Rule violates the Spending Clause because it introduces conditions for spending that were not unambiguously clear in Title IX....

The court finds that Plaintiffs have shown that the Final Rule violates he First Amendment by chilling speech through vague and overbroad language.....

 [T]he court finds that the Final Rule is arbitrary and capricious because it offers an implausible explanation for agency action, is a sharp departure from prior action without a reasonable explanation, and failed to consider important interests as discussed herein.

Court Grants Nationwide Injunction Barring Extensiion of Title IX To Gender Identity Discrimination

In State of Tennessee v. Becerra, (SD MS, July 3, 2024), in a suit brought by 15 states a Mississippi federal district court issued a nationwide preliminary injunction barring the Department of Education from enforcing its new rules under Title IX insofar as they define sex discrimination as including discrimination on the basis of gender identity. The court said in part:

The Supreme Court recently held that agencies are no longer entitled to deference pursuant to Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.... because Chevron “allow[ed] agencies to change course even when Congress [had] given them no authority to do so.” Loper Bright Enters. v. Raimondo,....

The Supreme Court further held that “statutes, no matter how impenetrable, do — in fact, must — have a single, best meaning....

In summary, the Court has found no basis for applying Bostock’s Title VII analysis to Section 1557’s incorporation of Title IX. HHS acted unreasonably when it relied on Bostock’s analysis in order to conflate the phrase “on the basis of sex” with the phrase “on the basis of gender identity.”...

... [T]his Court cannot accept the suggestion that Congress, with a “clear voice,” adopted an ambiguous or evolving definition of “sex” when it acted to promote educational opportunities for women in 1972.

Mississippi Today reports on the decision.

6 More States Fend Off Enforcement of Title IX Transgender Discrimination Rules

Four days after a Louisiana federal district court enjoined the Department of Education from enforcing its new sex-discrimination rules under Title IX against Louisiana, Mississippi, Montana and Idaho (see prior posting), a Kentucky federal district court issued an opinion barring enforcement against Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia which were plaintiffs in the case. DOE's new rules interpret the Title IX ban on sex discrimination to include discrimination against transgender students and faculty by institutions receiving federal financial assistance. Intervenors in the Kentucky case are an organization of Christian educators and a cisgender high school girl who objects to a transgender female who was on her Middle School track team. In State of Tennessee v. Cardona, (ED KY, June 17, 2024), the court in a 93-page opinion said in part:

The Department’s new definition of “discrimination on the basis of sex” wreaks havoc on Title IX and produces results that Congress could not have intended....

For purposes of Title IX, “sex” is unambiguous.  Therefore, there is no “implicit delegation from Congress” to the Department to change or expand its meaning.... But even if the word were ambiguous, there would be significant reason for pause before assuming that Congress “had intended such an implicit  delegation.”...  Education is one of the most important functions of state and local governments and is an area where states “historically have been sovereign.” ...  Accordingly, it is unlikely that Congress would have intended to delegate the authority to deviate from Title IX’s original purpose “in so cryptic a fashion.”...

The major questions doctrine assumes that Congress speaks clearly when it delegates to an agency the authority to make “decisions of vast economic and political significance.”...

The court also concluded that the new rules violate teachers' free speech rights, saying in part:

... [P]rivate and public institutions, as well as the students, faculty, and staff therein, will be forced to convey a particular message that may contradict moral or religious values....  For example, the Final Rule’s definition of harassment will likely compel “students and teachers to use ‘preferred’ rather than accurate pronouns.” ...

It is unclear how the Government’s articulated position can be seen as anything less than a tacit endorsement of a content-based heckler’s veto So long as the offended individuals complain with sufficient vigor, the refusal to abide by preferred pronouns can be deemed harassment and exposes a recipient of Federal funds to liability under Title IX....

The court also focused on parental rights and privacy rights, saying in part:

Although the Final Rule gestures at retaining a certain role for parents, it does not provide that parental opposition to their child’s selective gender identity requires schools to exempt that student from Title IX’s new mandate.  To the contrary, it implies that Title IX could supersede parental preferences about a child’s treatment depending on the case.

... [D]espite society’s enduring recognition of biological differences between the sexes, as well as an individual’s basic right to bodily privacy, the Final Rule mandates that schools permit biological men into women’s intimate spaces, and women into men’s, within the educational environment based entirely on a person’s subjective gender identity.  This result is not only impossible to square with Title IX but with the broader guarantee of education protection for all students.

ADF issued a press release announcing the decision.

6th Circuit: DOE's Interpretive Letter on Title IX Should Have Gone Through Notice and Comment Procedure

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.

DOE Enjoined from Applying New Title IX Rules Protecting Transgender Students In 4 States

In State of Louisiana v. U.S. Department of Education, (WD LA, June 13, 2024), a Louisiana federal district court enjoined the Department of Education from enforcing against four states new rules under Title IX which, among other things, bar discrimination by educational institutions against transgender students. (See prior posting). The new rules essentially apply the Supreme Court's interpretation of Title VII in the Bostock case to Title IX as well. The injunction applies to the states that were plaintiffs in the case-- Louisiana, Mississippi, Montana and Idaho. The court found that the new rules violate a number of statutory and constitutional provisions, saying in part:

In applying these statutory principles to Title IX, the Court finds that the term “sex discrimination” only included discrimination against biological males and females at the time of enactment. ,,,,

... [T]his Court finds that the application of Bostock and the Final Rule’s definition of “sex discrimination” contradict the purpose of Title IX.... Bostock does not apply because the purpose of Title VII to prohibit discrimination in hiring is different than Title IX’s purpose to protect biological women from discrimination in education.  ...

Defendants thus seemingly use Bostock in an attempt to circumvent Congress and make major changes to the text, structure, and purpose of Title IX. Such changes are undoubtedly contrary to Title IX and contrary to the Law.....

Plaintiffs argue the Final Rule’s new broad “severe or pervasive” standard, which considers speech or other expressive conduct that “limits” a person’s ability to participate in a program to be discriminatory harassment, cannot be squared with Title IX....

While Title VII is vastly important, and the Court sees the merits in harassment standards set forth in those provisions, the Court cannot simply apply the same standard to federally funded educational institutions. The “harassment standard” created by the Final Rule is obviously contrary to Title IX, and Plaintiffs have made compelling arguments for how it can violate the free speech right of the First Amendment. ...

Because the Final Rule is a matter of both vast economic and political significance, the Court finds the enactment of this rule involves a major question pursuant to the major questions doctrine. Therefore, Congress must have given “clear statutory authorization” to the applicable agency. The Court finds that Congress did not give clear statutory authorization to this agency....

This Court finds the Final Rule violates the Spending Clause because it contains ambiguous conditions and because the Final Rule violates other constitutional provisions – free speech and free exercise. Because this Court has found the Final Rule violates the Spending Clause, there is no need to discuss the Plaintiffs’ argument that the Final Rule violates the non-delegation doctrine....

This Court further finds that the Final Rule is arbitrary and capricious because the DOE (1) failed to address relevant factors and (2) and failed to consider important aspects of the problem. 

DOE Issues New Rules Under Title IX Protecting Against LGBTQ+ Discrimination

The Department of Education yesterday, in a 1577-page Release (full text), issued its final rules under Title IX on sex discrimination by educational programs receiving federal financial assistance. Among other things, the new rules provide:

§ 106.10 Scope.   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.  

§ 106.31 Education programs or activities....   (a)(2) 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.... 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.  

In its Release, DOE said in part:

With respect to religious educational institutions, the Department agrees with commenters that §§ 106.10 and 106.31(a)(2) do not apply to an educational institution that is controlled by a religious organization to the extent that the provisions’ application would not be consistent with the religious tenets of such organization. 20 U.S.C. 1681(a)(3). If an institution wishes to claim an exemption, its highest-ranking official may submit a written statement to the Assistant Secretary for Civil Rights, identifying the provisions of Title IX that conflict with a specific tenet of the controlling religious organization. 34 CFR 106.12(b). 

The Department notes that that the religious exemption in Title IX applies to an “educational institution” or other “entity’ that is controlled by a religious organization, 20 U.S.C. 1681(a)(3); 1687(4); it does not address an individual student or employee’s exercise of their religious beliefs. As commenters also noted, however, RFRA provides that the Federal government “shall not substantially burden a person’s exercise of religion” unless the government “demonstrates that application of the burden to the person . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. 2000bb–1.  

... OCR considers RFRA’s requirements when it evaluates a recipient’s compliance with Title IX. An individual may also inform the Department of a burden or potential burden under RFRA by sending an email to RFRA@ed.gov....  

With regard to commenters’ concerns related to the Free Speech and Free Exercise Clauses of the First Amendment, § 106.6(d) explicitly states that nothing in the regulations requires a recipient to restrict rights protected under the First Amendment or other constitutional provisions. The Department, likewise, must act in accordance with the U.S. Constitution.

The new rules also make other changes, including changes in grievance procedures. NPR reports on the rule changes.

UPDATE: On April 30, suit was filed by a Louisiana school district challenging the extension of Title IX to discrimination on the basis of gender identity. (Full text of complaint in Rapides Parish School Board v. U.S. Department of Education, (WD LA, filed 4/30/2024)).

Complaint Charges Sarah Lawrence College with Antisemitism Violating Title VI

A Complaint (full text) was filed on March 11 with the Department of Education Office for Civil Rights by Hillels of Westchester asking OCR to initiate an investigation of antisemitism at Sarah Lawrence College. The 43-page Complaint (with 46 pages of Exhibits attached) reads in part:

We are submitting this Title VI Complaint1 as counsel for Hillels of Westchester2 ... which is acting on behalf of current and former Jewish students at Sarah Lawrence College (“SLC”) who, as an expression of their Jewish identity, affiliate with Hillel or have an affinity for Israel....

The hostile environment on campus, going back many years, forces these Jewish students to conceal their identity and precludes them from participating in SLC’s social, educational and extracurricular activities unless they disavow their affiliation with Hillel or affinity for Israel.  The administration at SLC has been well aware of this ongoing problem and not only has failed to address it, but at times has been complicit in contributing towards it.  In the painfully sardonic words of one Jewish student who transferred out of Sarah Lawrence College because of its toxic environment, “it is safe to be Jewish as long as you are openly anti-Israel.”...

... [I]n some cases SLC administrators and faculty have discouraged students from lodging formal complaints of anti-Semitism, or have delayed or “slow-walked” the complaint process – essentially, waiting out the students until they graduate or complete the school year. The complaint process itself is notoriously opaque, preventing students from knowing what measures, if any, have been taken to address their complaints.

National Review reports on the Complaint.

Title VI Claims Against Universities Proliferate Since Israel-Gaza Conflict

As previously reported, in November 2023 the Department of Education issued a "Dear Colleague" letter in response to rising levels of antisemitic and Islamophobic incidents at schools and colleges since the October 7 Hamas attack on Israel and the Israeli response. The letter clarifies that even though Title VI does not specifically cover religious discrimination, many types of antisemitic and Islamophobic attacks fall under other types of discrimination covered by Title VI. The Forward yesterday reported that it has tracked 48 Title VI investigations by DOE's Office of Civil Rights filed since November charging higher education institutions with antisemitism, Islamophobia or similar discrimination, as well as ten lawsuits filed by private parties making similar contentions filed since then. It has published a detailed listing of all the investigations and cases it has tracked. The Forward explains:

When Ken Marcus took over the department’s civil rights office during the George W. Bush administration, he started looking for test cases for a new category of “shared ancestry” that would allow officials to investigate cases that touched on religion. He found one when a Sikh child in New Jersey was beaten by classmates who saw his turban and taunted him as “Osama,” a reference to the infamous Muslim terrorist.

Marcus believed that the discrimination wasn’t strictly religious in nature because the bullies weren’t intending to go after the boy’s Sikh identity. And it wasn’t obviously racial, either, since it was the turban that had drawn the bullies’ attention.

He authorized the department to investigate these types of cases under its authority to prohibit discrimination based on race or national origin, creating a new category called “shared ancestry.” Every subsequent administration has agreed that these cases fall under the department’s purview.

More controversial is the question of what, exactly, constitutes discrimination against Jews based on their shared ancestry. Marcus and many Jewish advocacy groups have taken the position that anti-Zionism — opposition to a Jewish state in Israel — is often antisemitic because many Jews identify with Israel as part of their shared ancestry.

Delaware School Enters Resolution Agreement with DOE Over Antisemitism Complaint

In a January 29 press release, the U.S. Department of Education Office for Civil Rights announced an agreement with the Red Clay, Delaware, Consolidated School District resolving a complaint about antisemitic harassment of a student. The press release sets out a number of incidents of harassment by fellow students. It then finds:

While the district responded to most harassing incidents the student experienced, these responses were often haphazard; were inconsistently enforced as well as inconsistently reflected in district documentation; did not consistently include effective or timely steps to mitigate the effects of the harassment on the student or other students; and did not appear to respond to escalating and repeated incidents.

OCR's findings are set out at greater length in its formal letter to the school district.

The school district has agreed (full text of Resolution Agreement) to reimburse the student's parents for past counseling, academic and therapeutic service costs from the incidents. It has agreed to widely publicize an anti-harassment statement; implement a student informational program; revise school policies; engage in training; audit complaints and incidents; and conduct an assessment of school climate.

JTA, reporting on the agreement, says:

The agreement marks the first time in nine months that the education department announced the closure of an antisemitism-related investigation filed under Title VI....

White House Summarizes Recent Initiatives to Combat Antisemitism and Islamophobia at Schools and Colleges

The White House yesterday issued a Fact Sheet: Biden-⁠Harris Administration Takes Action to Address Alarming Rise of Reported Antisemitic and Islamophobic Events at Schools and on College Campuses.  It announces recent initiatives and updated resources from the Department of Justice, the Department of Education, the Department of Agriculture, and the Department of Homeland Security to counter the increase in antisemitic and Islamophobic incidents at schools and colleges since the October 7 Hamas terrorist attacks in Israel.

DOE Reminds Schools of Duty to Protect Against Antisemitic and Islamophobic Discrimination

The U.S. Department of Education's Assistant Secretary for Civil Rights issued a "Dear Colleague" letter on Tuesday in response to rising levels of antisemitic and Islamophobic incidents at schools and colleges since the October 7 Hamas attack on Israel. (Press release). The letter (full text) says in part:

I write to remind colleges, universities, and schools that receive federal financial assistance of their legal responsibility under Title VI of the Civil Rights Act of 1964 and its implementing regulations (Title VI) to provide all students a school environment free from discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics. It is your legal obligation under Title VI to address prohibited discrimination against students and others on your campus—including those who are or are perceived to be Jewish, Israeli, Muslim, Arab, or Palestinian—in the ways described in this letter....

Schools that receive federal financial assistance have a responsibility to address discrimination against Jewish, Muslim, Sikh, Hindu, Christian, and Buddhist students, or those of another religious group, when the discrimination involves racial, ethnic, or ancestral slurs or stereotypes; when the discrimination is based on a student’s skin color, physical features, or style of dress that reflects both ethnic and religious traditions; and when the discrimination is based on where a student came from or is perceived to have come from, including discrimination based on a student’s foreign accent; a student’s foreign name, including names commonly associated with particular shared ancestry or ethnic characteristics; or a student speaking a foreign language.

Baylor Gets DOE Assurance That It Is Exempt From Title IX Sexual Harassment Rules

In a July 25 letter (full text), the U.S. Department of Education Office of Civil Rights has assured Baylor University that, as a university controlled by a religious organization, it is exempt from various regulations under Title IX to the extent that they are inconsistent with the University's religious tenets.  As reported by the Religious Exemption Accountability Project, in the past many religious universities have been assured they are exempt from Title IX regulations barring discrimination on the basis of sexual orientation, gender identity, marital status, sex outside of marriage, pregnancy or abortion. (See prior posting.) For the first time, however, Baylor was also assured that it is exempt from sexual harassment rules. More specifically, it was assured that compliance with its religious tenets by the University or its students would not constitute “unwelcome conduct” under the Department’s definition of “sexual harassment” under Title IX. 

Baylor's letter requesting a ruling (full text) was filed in response to several complaints filed with the DOE Office for Civil Rights. The letter reads in part:

The University does not discriminate on the basis of sexual orientation or gender identity or expression per se, but it does regulate conduct that is inconsistent with the religious values and beliefs that are integral to its Christian faith and mission....

The OCR complaints at issue here allege that Baylor violated OCR's Title IX regulations by its application of its Statement on Human Sexuality, Sexual Conduct Policy, Civil Rights Policy, Theological Seminary Policy, Baptist Faith and Message of 1963, and Truett Handbook to its campus community, both as a general matter and specifically in three situations: (1) the University's alleged decision to deny applications for an official charter for Gamma Alpha Upsilon, (2) the University's alleged response to notice that students were subjected to harassment based on their sexual orientation and/or gender identity, (3) and the University's alleged decision to pressure University media to not report on LGBTQ events and protests in September and October 2021.

According to an extensive report on Baylor's request, Baptist News Global says in part:

Baylor Assistant Vice President for Media and Public Relations Lori Fogleman said Baylor is responding to the “expanded definition of sexual harassment” under Title IX from the Biden administration, which includes discrimination against LGBTQ people.

White House Announces New Initiatives to Protect LGBTQI+ Communities

The White House yesterday released Fact Sheet: Biden-⁠Harris Administration Announces New Actions to Protect LGBTQI+ Communities (full text). It reads in part:

Today, in celebration of Pride Month, the Biden-Harris Administration is announcing new actions to protect LGBTQI+ communities from attacks on their rights and safety.  Over a dozen states have enacted anti-LGBTQI+ laws that violate our most basic values and freedoms as Americans, and are cruel and callous to our kids, our neighbors, and those in our community. The Biden-Harris administration stands with the LGBTQI+ community and has their backs in the face of these attacks....

The Fact Sheet announced new federal action, including a new LGBTQI+ Community Safety Partnership and new initiatives to deal with LGBTQI+ youth homelessness, foster care and mental health. It also announced the release of federal funds "to support programs that help parents affirm their LGBTQI+ kids."  Additionally, it announced initiatives to counter book bans, which "disproportionately strip books about LGBTQI+ communities, communities of color, and other communities off of library and classroom shelves." The Department of Education will appoint a coordinator to "work to provide new trainings for schools nationwide on how book bans that target specific communities and create a hostile school environment may violate federal civil rights laws."

DOE Updates Guidance on Prayer In Public Schools

Yesterday, the U.S. Department of Education issued an updated Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools. The Guidance document points out that the Elementary and Secondary Education Act requires the Secretary of Education to issue such guidance to state and local education agencies, and local agencies must certify that they do not have policies that deny participation in constitutionally protected prayer. The Guidance reads in part:

Teachers, school administrators, and other school employees may not encourage or discourage private prayer or other religious activity.

The Constitution does not, however, prohibit school employees themselves from engaging in private prayer during the workday where they are not acting in their official capacities and where their prayer does not result in any coercion of students. Before school or during breaks, for instance, teachers may meet with other teachers for prayer or religious study to the same extent that they may engage in other conversation or nonreligious activities. School employees may also engage in private religious expression or brief personal religious observance during such times, subject to the same neutral rules the school applies to other private conduct by its employees. Employees engaging in such expression or observance may not, however, compel, coerce, persuade, or encourage students to join in the employee's prayer or other religious activity, and a school may take reasonable measures to ensure that students are not pressured or encouraged to join in the private prayer of their teachers or coaches.

Americans United issued a press release welcoming the updated Guidance.

DOE Proposes to Rescind Trump Administration Rules Shielding Student Religious Groups at Public Colleges

The Department of Education yesterday released a Notice of Proposed Rulemaking (full text) proposing to rescind two related rules adopted by the Trump Administration in September 2020. Those rules require that public colleges and universities which receive DOE grants (either direct grants or grants under state-administered formula grant programs) must not deny to religious student groups any of the rights, benefits, or privileges that other student groups enjoy because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely-held religious beliefs.

According to yesterday's Notice of Proposed Rulemaking:

Some faith-based and civil rights organizations ... worried that [these rules] could be interpreted to require IHEs [institutions of higher education] to go beyond what the First Amendment mandates and allow religious student groups to discriminate against vulnerable and marginalized students....

There is nothing in the regulatory text that clarifies or guarantees that an institution may insist that such religious organizations comply with the same neutral and generally-applicable practices, policies, and membership and leadership standards that apply equally to nonreligious student organizations, including but not limited to nondiscrimination requirements.

The disparity between the language of the regulatory text and the Department’s stated intent has engendered confusion and uncertainty about what institutions must do to avoid risking ineligibility for covered Department grants....

If IHEs do discriminate against religious student organizations on the basis of the organizations’ beliefs or character, such organizations can and do seek relief in Federal and State courts, which have longstanding expertise in and responsibility for protecting rights under the Free Speech and Free Exercise Clauses, including in cases where there are complex, fact-dependent disputes about whether a policy is neutral and generally-applicable.

Daily Citizen critiques the proposal.

The Department of Education yesterday also published a Request for Information on the effect of current free speech protections required of DOE grantees.

Court Enjoins DOE and EEOC From Enforcing LGBT Anti-Discrimination Interpretations Because Of Procedural Issues

 In State of Tennessee v. U.S. Department of Education, (ED TN, July 15, 2022), a Tennessee federal district court enjoined the Department of Education and the EEOC from enforcing against 20 states that are plaintiffs in the case documents interpreting Title IX and Title VII as including prohibitions on discrimination on the basis of sexual orientation or gender identity. According to the court:

Plaintiffs have demonstrated that they are likely to succeed on their claim that Defendants’ guidance documents are legislative rules and that the guidance is invalid because Defendants failed to comply with the required notice and comment procedures under the APA.

CNN reports on the decision.

Proposed Rule Amendments Say Title IX Bars LGBT Discrimination

Last Thursday, the Department of Education issued a 700-page Release (full text) proposing amendments to the regulations implementing Title IX which bars sex discrimination in education programs or activities that receive federal funding. Among other things, a new rule, 34 CFR 106.10, would provide:

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.