Federal Courts Push Education Policy Through Title IX

MK v. Pearl River County School District

Congress enacted Title IX of the Civil Rights Act in 1972 to prevent schools from giving students special educational benefits or denying them opportunities based on their sex. As everyone understood at that time, its laudable purpose was to improve educational opportunities for girls and young women. No one thought it covered any issues related to sexual orientation or transgender rights.

Yet, in the decades since its enactment, the federal government has periodically tried to broaden the reach of the law to expand federal control of state and local affairs. In this way, the federal education bureaucracy pushes progressive educational policies onto local school boards by threatening their loss of federal funds.

Most recently, the Biden Administration’s Department of Education and a handful of federal judges have tried to expand what it means to discriminate against someone on the basis of sex to include sexual orientation and gender identity and open the courts as a forum to litigate what should be local disciplinary issues.

The Federal Courts’ Title IX Push

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.” Although 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.

CIR stepped in on behalf of the school district challenging the basis of the lawsuit as an unconstitutional intrusion by the federal government into an area that historically and properly belongs to state and local governments. When student-teasing is harmful or approaches the level of bullying, schools everywhere take disciplinary action, but normal disciplinary decisions are a purely local affair, and no existing federal law has changed that arrangement.

As urged by the Biden Administration’s Department of Education, some courts have been emboldened to read the educational nondiscrimination law relating to fair treatment of boys and girls to include more complex issues. In Bostock v. Clayton County (2020), the Supreme Court expanded the definition of sex-based discrimination in the workplace to include sexual orientation and sexual identity discrimination. But whatever the merits of Bostock, its holding did not reach the education context, as the Supreme Court itself acknowledged.

Title IX is Not Like the Others

Unlike other federal laws, Title IX is not an exercise of Congress’ legislative power to impose obligations with the force of law.  Instead, it is an exercise of Congress’ spending power. It makes certain federal policies a condition that state and local governments need to meet to receive federal funds.  Accordingly, the courts treat laws enacted under the spending power as contracts.

Because Title IX functions as a contract, courts must interpret the law as both Congress and the regulated parties would have understood when Congress enacted it. In 1972, when Congress enacted Title IX, neither the federal nor state governments understood the meaning of the term sex to include the concepts of sexual orientation or gender identity. Congress has been considering possible amendments to Title IX for several years, and if it did so, it would likely involve complex tailoring. Neither federal agencies nor federal courts have the authority to expand the meaning of the law without authorization in law from Congress.

Unless and until the law is changed by Congress—and the States agree to or decline the new conditions–the education bureaucracy must stay in its lane. As much as the federal bureaucrats like to legislate and coerce states with taxpayer money to accept their dictates, that’s not the way the Constitution works.

MK v. Pearl River is CIR’s third case in our Project to Restore Competitive Federalism, a multi-year, multi-front campaign to restore proper constitutional limits to both federal and state governments. You can read more about the project in the most recent edition of the Docket Report.