Challenges to Biden admin's Title IX rule multiply, moving forward quickly

Rulings on efforts to block the LGBTQ protections and other provisions could start coming in June in advance of the August 1 effective date of the regulations.

There are now at least eight cases filed challenging the Biden administration’s Title IX rules, which are set to go into effect on Aug. 1. The long-awaited rules include explicit LGBTQ protections, as well as provisions relating to treatment of sexual assault complaints and other requirements under the 1972 education law.

The lawsuits are seeking to block the rules from ever going into effect, with at least some of the first district court rulings likely to come in June. Expect quick movement into the appeals courts and potentially to the U.S. Supreme Court after that, given the Aug. 1 effective date.

I previously covered two of the challenges at Law Dork, cases that were brought in such a way that they were certain or likely to be assigned to conservative Trump appointees in Texas and Louisiana. Cases also have been filed in Alabama, Missouri, Tennessee, and Oklahoma.

Tennessee’s case — filed April 30 and in which they are joined by Indiana, Kentucky, Ohio, Virginia, West Virginia — is moving forward quickly and appears to be setting the pace for some of the other cases.

The Tennessee-led case was reassigned to Judge Danny Reeves, a George W. Bush appointee, on May 7 after initially having been assigned to Judge David Bunning. By then, the states had already filed their motion for a preliminary injunction and stay of the rule, as well as a motion to expedite consideration of the request to have it heard in May. Although Reeves denied that request to expedite on May 8, he also denied the Justice Department’s request for delay.

Additionally, the far-right Christian legal advocacy group, Alliance Defending Freedom, moved to intervene in the Tennessee case on behalf of the Christian Educators Association International and a student in West Virginia schools, which Reeves granted on May 8.

Ultimately, Reeves set a briefing schedule for the preliminary injunction request over a slightly longer timeline than the plaintiffs had sought and set arguments for the week of June 10.

Any appeals from a decision in the Tennessee’s case would go to the U.S. Court of Appeals for the Sixth Circuit.

And yet, Reeves’s movement in that case last week did appear to prompt some action in those Texas and Louisiana-based cases this week.

In Texas’s challenge, the state filed an amended complaint in the case on Monday — adding two university professors as plaintiffs, among other changes. On Tuesday, the state filed a request for a preliminary injunction and stay of the rule and a motion to expedite the consideration of the request. In Tuesday’s filing, Texas asked Judge Matt Kacsmaryk, a Trump appointee, to set the schedule such that any hearing could be held the week of June 3 — the week before the Tennessee hearing is scheduled.

[Update, 12:45 a.m. May 15: On Tuesday, however, Kacsmaryk quickly denied Texas’s request to expedite consideration of the preliminary injunction motion.

For a conservative to bring a request that Kacsmaryk — one of the most conservative district court judges in the country — calls “especially inappropriate” takes effort, yet Texas managed to do so here. (I would not, however, read anything into this about his views on the substance of the litigation.)]

In Louisiana’s challenge, the state — which was joined by Idaho, Mississippi, and Montana, along with the Louisiana Department of Education in its original complaint — filed an amended complaint on May 3, adding 17 local Louisiana school boards on as plaintiffs. On Monday, the plaintiffs filed their request for a preliminary injunction and stay of the rule. On Tuesday, they filed a request for expedited review, to which Judge Terry Doughty, a Trump appointee, responded hours later, granting expedited briefing. Under the schedule, briefing could be done as soon as June 12, depending on how quickly the plaintiffs serve the Biden administration.

In short, if Louisiana moves quickly, it sure sounds like Doughty is willing to do so.

One school district, Rapides Parish School Board, notably brought its own lawsuit the day after Louisiana filed its lawsuit. Alliance Defending Freedom is representing the school board. On Tuesday evening, the Justice Department moved to consolidate the two Louisiana cases. Later Tuesday night, the school board, with its ADF lawyers, filed a motion for preliminary injunction and to delay the rule.¹

[Update, 12:45 p.m. May 15: On Wednesday, Judge Doughty consolidated the two Louisiana cases, and the Louisiana-led plaintiffs filed their memorandum in support of their request for a preliminary injunction and to stay the rule.]

Any appeals in the Texas or Louisiana cases would go to the far-right U.S. Court of Appeals for the Fifth Circuit.

Alabama’s case — filed on April 29 and in which they are joined by Florida, Georgia, South Carolina, and several organizations — was assigned on Monday to U.S. District Judge Annemarie Carney Axon, a Trump appointee. The plaintiffs have filed their preliminary injunction and stay of the rule request, but their proposed schedule doesn’t seek arguments, if necessary, until July 1 and there is no formal briefing schedule set yet.

[Update, 12:55 p.m. May 15: Judge Axon set a briefing schedule in a Tuesday order that accorded with the proposed schedule.

Axon also set arguments for June 26 — a week earlier than the plaintiffs had proposed.]

Any appeal from a decision there would be heard in the U.S. Court of Appeals for the Eleventh Circuit.

The Oklahoma Department of Education’s case, filed May 6, has been assigned to Judge Jodi Dishman, another Trump appointee. A case filed by the state’s attorney general on behalf of Oklahoma was also filed May 6 and was reassigned on May 8 to Dishman. Nothing else has happened yet in the cases. Any appeals in these cases, should they begin moving, would be heard in the U.S. Court of Appeals for the Tenth Circuit.

Finally, an Arkansas-led case — in which they are joined by Missouri, Iowa, Nebraska, North Dakota, South Dakota, and a student — was filed in Missouri on May 7. The case was assigned to Judge Rodney Sippel, a Clinton appointee and senior judge. Nothing further has happened in that case. Any appeals in this case, should it begin moving, would be heard in the U.S. Court of Appeals for the Eighth Circuit. ²

1. This paragraph was added after initial publication, at 9:49 p.m., with an update to include the preliminary injunction motion information at 12:39 a.m. May 15.

2. This paragraph was added after initial publication, at 5:26 p.m.