Groups argue Kansas injunction blocks new Title IX rule at nearly 700 colleges

There is still a lack of clarity about the July 2 injunction issued by U.S. District Judge John Broomes, a Trump appointee. Also: Biden taking on SCOTUS?

Two weeks after U.S. District Judge John Broomes, a Trump appointee in Kansas, issued a broad injunction blocking enforcement of the Biden administration’s new Title IX rule set to go into effect on August 1, it is still not clear the geographic area affected.

Rather than questions about the effect of Broomes’s order being answered, each day instead just seems to add to them. The latest questions come out of a Monday filing in which two organizations suing the Education Department claimed that nearly 700 colleges across the country should be covered by the injunction.

The issues have arisen in an ongoing federal case in Kansas where four states — Alaska, Kansas, Utah, and Wyoming — and three organizations — Young America’s Foundation, Female Athletes United, and Moms for Liberty — are challenging the rule, issued under Title IX of the Education Amendments Act of 1972, because of the protections it asserts for LGBTQ students.

The rule is also blocked in 11 other states — Idaho, Indiana, Kentucky, Louisiana, Mississippi, Montana, Ohio, Tennessee, Texas, Virginia, and West Virginia — under three separate preliminary injunctions.

But, the scope of Broomes’s order means it could affect enforcement of the rule in hundreds of schools across the country — with Moms for Liberty seeking to expand that exponentially.

On July 2, Broomes issued a preliminary injunction in the case — blocking enforcement of the rule when it goes into effect in the four states and in any school attended by members of the organizations. For Moms for Liberty, the injunction was to apply to any school attended by a child of a member.

On July 12, though, Moms for Liberty asked Broomes to extend the injunction to more than 850 counties across the nation — previously covered at Law Dork. The Justice Department filed its opposition to the request over the weekend, arguing that “the requested relief would vastly expand the scope of the injunction far beyond any reasonable fit to the harms [Moms for Liberty] alleges.”

The Monday filing from the plaintiffs exposed another significant aspect of the scope of Broomes’s ruling — as the Young America’s Foundation and Female Athletes United claimed members in nearly 700 colleges across the nation.

The colleges include many of the largest schools by enrollment and highest-ranked schools in the country — including the top 5 schools in both of those categories.

The groups also submitted a list claiming members in nearly 500 K-12 schools in 44 states and Washington, D.C.

There nonetheless remains a significant lack of clarity not only about Broomes’s order — and also about Moms for Liberty’s unresolved request.

In its July 12 filing, Moms for Liberty asked Broomes to enjoin enforcement of the rule in “any county in which the child of a member of Moms for Liberty resides.”

As I noted previously, this would substantially enlarge the scope of the injunction because if, for example, one member of Moms for Liberty had one student in one school within the Los Angeles Unified School District, the rule would be blocked in all of the schools in Los Angeles — including the more than 1,300 schools within the Los Angeles Unified School District.

In that filing, Moms for Liberty submitted a list of more than 850 counties. Looking more closely at the footnote describing the list on Monday, I saw how carefully it is worded. The footnote stated that the submission is “a list of counties in which its members and the children of its members reside.”

Although the modification sought is for “any county in which the child of a member of Moms for Liberty resides,” the list submitted appears to include any county in which a member lives or in which a member’s child lives. Earlier in the filing, the lawyers removed the alleged children involved altogether, writing, “Moms for Liberty asks the Court to permit it to submit a list of counties in which its members reside.”

Admittedly, it is not clear exactly what the list contains, but that is just another problem with the request.

In the Justice Department’s opposition, it addressed the fit aspect repeatedly — noting the dramatic increase in scope that Moms for Liberty is seeking and questioning Moms for Liberty’s claim that school-level information would be impractical because, the group claimed, it doesn’t collect information about members by school:

There is … no principled limit on MFL’s argument—an organization that maintained membership information only at the state or regional level would not be entitled to a state- or region-wide injunction based on the happenstance of its own recordkeeping practice. Indeed, the contrary conclusion would incentivize membership organizations to maintain only scant or highly-generalized information.

DOJ also countered Moms for Liberty’s claimed concerns about harassment, stating that “MFL has not shown how the Court’s existing preliminary injunction raises any privacy or safety concerns because it has not shown how providing a list of schools will identify any particular student or parent.”

Broomes is yet to rule on the request.

Law Dork is covering the Title IX rule challenges in depth. Read the full coverage here.

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Sure, OK, let’s go

We’re long past the time for this, but it is good to see.

The Washington Post is reporting this afternoon that President Biden is preparing to announce support for “legislation to establish term limits for the justices and an enforceable ethics code,” per sources. Also under consideration, per the Post, is “whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders.”

Of course, Democrats need to keep the presidency and the Senate, not to mention take the House, in order for this to matter, but, again, it’s good to see and exactly the sort of discussions Democrats need to be having.

I’ll certainly have more on this moving forward, but I wanted to highlight it now.

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Law Dork in the media

Another podcast!

From the description of the Sidebar episode:

Chris Geidner, a noted Supreme Court reporter and author of the newsletter “Law Dork” joins SideBar to discuss how federal “judge-shopping” is allegedly being used to manipulate outcomes and how the current Supreme Court is responding.

It was great to talk with Mitch Winick and Jackie Gardina, and you should check it out!