Texas v. Cardona

1

THE STATE OF TEXAS, Plaintiff, v. MIGUEL CARDONA, et al., Defendants.

Civil Action No. 4:23-cv-00604-O

United States District Court, N.D. Texas, Fort Worth Division

August 5, 2024

MEMORANDUM OPINION AND ORDER

REED O'CONNOR, UNITED STATES DISTRICT JUDGE.

Before the Court are Plaintiff's Motion for Summary Judgment (ECF No. 23) and Brief in Support (ECF No. 24), filed October 20, 2023; Defendants' Opposition to Plaintiff's Motion for Summary Judgment and Cross-Motion to Dismiss or in the Alternative, for Summary Judgment (ECF No. 27) and Brief in Support (ECF No. 28), filed December 1, 2023 Plaintiffs Consolidated Reply in Support of Its Motion for Summary Judgment and Brief in Opposition to Cross-Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No 31), filed April 29, 2024; Defendants' Reply Brief in Support of Their Cross-Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 32), filed April 29, 2024; Defendants' Supplemental Brief (ECF No. 35) filed May 9, 2024; and Plaintiffs Supplemental Brief (ECF No. 36), filed May 9, 2024. Also before the Court is the Administrative Record (ECF No. 22), filed on September 15, 2023. These filings focus on whether the federal government may lawfully impose conditions on a state's educational institutions by purporting to interpret Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681 et seq., as prohibiting discrimination based on sexual orientation and gender identity.

Having considered the briefing and applicable law, the Court concludes that Defendants cannot regulate state educational institutions in this way without violating federal law.

Accordingly, the Court holds that Defendants engaged in unlawful agency action taken in excess of their authority, all while failing to adhere to the appropriate notice-and-comment requirements when doing so. Therefore, the Court GRANTS Plaintiff's Motion for Summary Judgment (ECF No. 23) and DENIES Defendants' Cross-Motion to Dismiss or, in the Alternative, for Summary Judgment (ECF No. 27).

I. BACKGROUND

A. Parties and Procedural Background

On June 14, 2023, the State of Texas (“Plaintiff' or “Texas') filed this lawsuit against the United States Department of Education (the “Department”), Miguel Cardona, in his official capacity as Secretary of Education, the Department of Justice (the “DOJ”), and Merrick Garland, in his official capacity as Attorney General of the United States (collectively, the “Defendants”).^[1]The Department is the federal executive agency responsible for administering and enforcing federal education assistance, including Title IX.^[2] The other federal executive agency in this lawsuit, the DOJ, is also empowered to enforce Title IX.^[3] In response to agency action taken by Defendants, Plaintiff asks the Court to: (1) vacate and set aside the June 22, 2021 Notice of Interpretation, the June 23, 2021 Dear Educator Letter, and the June 23, 2021 Fact Sheet (collectively, the “Guidance Documents”); (2) declare the Guidance Documents unlawful, along with the underlying Title IX interpretation; and (3) enjoin enforcement or implementation of the Guidance Documents and the underlying interpretation.^[4] In support of this requested relief, Plaintiff asserts two theories: (1) the Guidance Documents are “not in accordance with law and are in excess of statutory authority because they rely upon the interpretation of Title VII described in Bostock and apply it to Title IX” and (2) the Guidance Documents “are substantive or legislative rules that required notice-and-comment rulemaking.”^[5] The parties separately move for summary judgment.^[6] Additionally, Defendants assert five jurisdictional challenges, arguing that any one of its various jurisdictional arguments warrants dismissal prior to the Court's consideration of the merits of Plaintiff's claims.^[7]

B. Statutory and Regulatory Landscape

Motivated by “corrosive and unjustified discrimination against women ... in all facets of education,” Congress enacted Title IX in 1972. 118 Cong. Rec. 5803 (Feb. 28, 1972) (Statement of Sen. Bayh). Title IX generally provides that “[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). This landmark legislation prohibits “the use of federal resources to support discriminatory practices” among federal fund recipients. Cannon v. Univ. of Chi., 441 U.S. 677, 704 (1979). Its original goal was to ensure women experienced “full citizenship stature,” including the “equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.” United States v. Virginia, et al., 518 U.S. 515, 532 (1996).

Under Title IX, the Department is “authorized and directed to effectuate the provisions of section 1681 . . . by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute.” Id. § 1682. These enforcement activities include issuing regulations that permit educational institutions to separate students on the basis of sex provided that the separate accommodations are comparable. For instance, Title IX allows for exemptions to certain single-sex organizations such as fraternities and sororities, singlesex activities like “Boys State” and “Girls State” conferences, and “father-son or mother-daughter activities,” so long as there are “opportunities for reasonably comparable activities . . . provided for students of the other sex.” Id. § 1681(a)(6)-(8). These exceptions allow entities subject to Title IX to provide sex-specific programs, facilities, and opportunities when doing so ensures equal opportunities for members of both sexes. 34 C.F.R. § 106.41(b), (c). This comparative equality is essential given that, prior to 1972, schools often prioritized boys over girls. See Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 175 (3d Cir. 1993) (noting “the historic emphasis on boys' athletic programs to the exclusion of girls' athletic programs in high schools as well as colleges”).

Enforcement of Title IX typically begins with a complaint from a private party. 34 C.F.R. § 100.7(b). However, the Department also has authority to initiate investigations on its own. Id. § 100.7(a), (c). The Department generally must “make a prompt investigation” of any “compliance review, report, complaint, or any other information” that “indicates a possible failure to comply” with Title IX, which “should include, where appropriate, a review of the pertinent practices and policies of the [funding] recipient, the circumstances under which the possible noncompliance with [Title IX] occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with [Title IX].” Id. § 100.7(c). If the investigation “indicates a failure to comply,” the Department will inform the recipient and must attempt to secure voluntary compliance through “informal means.” Id. § 100.7(d)(1). Should these efforts fail, the Department will make a written finding that the recipient is in violation of Title IX and then, if further attempts at voluntary resolution are not successful, it may either refer the matter to the DOJ with a recommendation that proceedings be brought to enforce Title IX or begin its own administrative proceedings. Id. §§ 100.7(d), 100.8(a). The result of these proceedings could be the termination of funding to educational programs or a request to the DOJ to initiate other legal action. 20 U.S.C. § 1682. Private parties can also bring civil actions under Title IX directly against recipients of federal financial assistance. Cannon, 441 U.S. at 689.

C. Guidance Documents

The Guidance Documents build on previously enjoined guidance issued under President Barack Obama. See Questions and Answers on Title IX and Sexual Violence B-2, 89 Fed.Reg. 33,474 (Apr. 29, 2014) (“Title IX's sex discrimination prohibition extends to claims of discrimination based on gender identity.”); see also 2016 Dear Colleague Letter on Title IX and Transgender Students 2, U.S. Dep'ts of Educ. & Just. (May 13, 2016) (informing educational institutions about the new “Title IX obligations regarding transgender students”). This Court enjoined the implementation of these prior guidance documents as contrary to law because “the plain meaning of the term sex as used in § 106.33 when it was enacted by [the Department] following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.” Texas v. United States, 201 F.Supp.3d 810, 832-33 (N.D. Tex. 2016) (O'Connor, J.). Following the presidential administration change in 2017, the Department withdrew this guidance. 2017 Dear Colleague Letter on Title IX, U.S. Dep'ts of Educ. & Justice (Feb. 22, 2017). And by 2020, the Department formally promulgated regulations recognizing that Title IX has been consistently applied in a manner that treats “sex” as biological sex. Nondiscrimination on the Basis of Sex in Educ. Programs or Activities Receiving Fed. Fin. Assistance, 85 Fed.Reg. 30,026, 30,036 (May 19, 2020).

The next month, on June 15, 2020, the Supreme Court held that the statutory language “because of . . . sex” prohibits employment discrimination based on “sexual orientation” and “gender identity” in a related anti-discrimination statute, Title VII. Bostock v. Clayton Cnty., 590 U.S. 644, 681-83 (2020). According to the Supreme Court, discrimination on the basis of sexual orientation or gender identity is necessarily discrimination “because of sex.” Id. In response, the...