CIR Files Brief in Title IX Challenge

On July 29, CIR filed an appellee brief in MK v. Pearl River, defending a Mississippi school district in a federal lawsuit that threatens to expand federal control over local education policy without congressional authorization. Title IX narrowly prohibits educational institutions from discriminating against a person on the basis of sex. But in recent years, both the executive branch and some federal courts have attempted to expand the meaning of this law in several ways to impose progressive educational policies nationwide. These are unconstitutional efforts to rewrite the law without Congressional authorization.

In MK v. Pearl River, a home-school student entering public school for the first time was teased by some of his classmates, who occasionally called him “gay.” Though the student does not identify as gay and the teasing mostly revolved around the student being bad at video games–he filed a federal lawsuit seeking significant monetary damages alleging the school district failed to prevent sexual orientation discrimination in violation of Title IX. Of course, schools should protect students from bullying, but such normal discipline decisions are a purely local affair, and no existing law has changed that arrangement.

CIR argues that this expansive reading of Title IX has no foundation in the original understanding of the text of Title IX. Moreover, Congress enacted Title IX under the Constitution’s Spending Clause, and accordingly, it functions more like a contract than a traditional law. Unlike other federal laws, the law does not create obligations on its own, but instead makes adoption of the federal policy a condition to receiving federal funds. Ordinary laws may have unanticipated applications that only emerge over time, but courts must apply Title IX as both Congress and the regulated parties understood the terms when Congress enacted it. No one in 1972 thought that sex discrimination included sexual orientation and gender identity. Thus, expanding its application is unconstitutional.