Texas and Louisiana took their challenges to Biden’s Title IX rules to friendly Trump judges

Both Texas's lawsuit and the Louisiana-led challenge to the LGBTQ protections went to conservative Trump appointees. Appeals would go to the Fifth Circuit.

Two legal challenges to the Biden administration's new education rules that include explicit LGBTQ protections were filed this week and quickly assigned to conservative Trump appointees by design. Appeals of both cases, moreover, would go to the far-right U.S. Court of Appeals for the Fifth Circuit, setting up a difficult path ahead for the long-awaited rules.

Republican Texas Attorney General Ken Paxton filed a legal challenge to the new Title IX rules on Monday. In a second challenge to the rules, Republican Louisiana Attorney General Liz Murrill — joined by Republican attorneys general in Idaho, Mississippi, and Montana — also filed a lawsuit on Monday.

Both lawsuits seek to block the rules, which are supposed to go into effect in August, from ever being enforceable. The lawsuits themselves, however, raise significant questions about how Paxton and Murrill are approaching the cases.

The long-expected Title IX rules were announced on April 19, setting forth explicit protections for LGBTQ students in schools that receive federal funding under the eduction law, while avoiding any position on trans students’ participation in sports. The rules also clarify and alter other obligations — including relating to how schools address sexual assault allegations.

Republican criticism has primarily focused on the sexual orientation and gender identity protections made explicit in the rule — leading to Paxton’s lawsuit. And my questions about it.

First, the case was filed in the Amarillo Division of the Northern District of Texas and assigned to U.S. District Judge Matthew Kacsmaryk. Because the case was filed in the Amarillo Division — where Kacsmaryk, well known to court watchers for his far-right rulings, alone sits — he had a 100% chance of getting assigned the case, per the court’s rules.¹

This was the exact scenario that the Judicial Conference of the United States was trying to stop with its policy announcement in March regarding assignment of judges throughout a district and not by division in cases challenging a federal policy — a policy that I noted previously was rejected by the judges of the Northern District of Texas.

Second, the lawsuit is signed by two people who do not work in the Attorney General’s Office. Jonathan Mitchell, the former solicitor general of Texas who is now in private practice, and Gene Hamilton, from Stephen Miller's America First Legal organization, are — per America First Legal’s characterization of it — “partnering” with Texas in the litigation. Paxton reposted that reference on Twitter/X.

This arrangement raises some of the same questions that Idaho’s “partnering” with Alliance Defending Freedom in several cases raises — a situation that I’ve reported on previously at Law Dork.

The second Title IX case, led by Louisiana’s attorney general, was filed in the Monroe Division of the Western District of Louisiana and assigned to U.S. District Judge Terry Doughty.

Doughty was the district judge who issued the extremely broad order on July 4, 2023, limiting Biden administration contact with social media companies. The U.S. Court of Appeals for the Fifth Circuit limited that decision. (I detailed all of this and more in a preview Q&A from March.) Even that limited order was then viewed skeptically in oral arguments at the U.S. Supreme Court.

Because the case was filed in the Monroe Division, where Doughty sits, he had a 70% chance of getting assigned the case, per the court’s rules.

Now that both Kacsmaryk and Doughty have been hand-delivered cases that are a pet project of far-right forces — as the Texas case’s legal support makes clear — the judges will now have the power to decide on the states’ efforts to block the rules from going into effect.

Appeals from both courts, moreover, go to the Fifth Circuit — which is an extreme, far-right court. While some of its rulings have been challenged by the Supreme Court, it has also had some of its precedent-ignoring extremism encouraged by the justices — including this week.

1. This paragraph was corrected after initial publication to include and reflect the most recent general order affecting case assignment in the Amarillo Division. An earlier order, originally cited, led to Kacsmaryk getting assigned 95% of the cases filed there, but the current order, now cited, increased that to 100%. The correction was made at 9:40 a.m.