Parents Defending Education Preliminary Injunction Reply Brief in Title IX Lawsuit

On June 19, 2024, The States of Alabama, Georgia, Florida and South Carolina along with Parents Defending Education, The Independent Women’s Forum, and Speech First filed their reply brief in support of the motion for stay of effective date and preliminary injunction in in The State of Alabama, et. al. v. Miguel Cardona, et. al.

The administration’s Title IX rule has been challenged by 26 States (and is enjoined in ten, so far). Tennessee v. Cardona (TN Rule), 2024 WL 3019146 (E.D. Ky. June 17); Louisiana v. Dep’t of Educ., 2024 WL 2978786 (W.D. La. June 13). That level of resistance shouldn’t be surprising, since unelected bureaucrats tried to reinvent a landmark statute to impose their deeply unpopular views on the entire country. Nor is it terribly surprising that the agency’s lawyers, faced with all this litigation, drafted a generic brief that defends the rule only at a high level.

But a cookie-cutter defense won’t work in this circuit. As this Court already flagged, Eleventh Circuit precedent is “adverse” to the Department’s rule. Text Order (June 10, 2024). The Department’s opposition never admits that Adams makes the rule’s bathroom provision dead on arrival. And Adams’ reasoning dooms the rule’s importation of Bostock more broadly. Other binding precedents, like Cartwright, hold that the rule’s definition of harassment raises grave First Amendment concerns. And though the rule’s procedural changes aren’t immediately doomed by circuit precedent, that’s about all that can be said for them.

This Court will likely vacate the rule. Instead of letting it irreparably harm States and students in the meantime, this Court should stay its effective date—or at least preliminary enjoin its enforcement in the Plaintiff States—by August 1.