Today, a divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a preliminary injunction against multiple Department of Education guidance documents that would apply the Supreme Court ruling bostock Under Title IX, discrimination based on sexual orientation or gender identity is deemed to constitute discrimination on the basis of sex. Notably, the decision does not address the substance of the Department’s position, but instead focuses on whether this action is subject to notice-and-comment rulemaking. In other words, this is more of an administrative law decision than one about legal interpretation or gender equality.
Judge Nalbandian wrote the opinion for the court State of Tennessee v. Department of Education. He was joined by Judge Larson. Senior Judge Boggs dissented.
The lawsuit against the Department of Education was filed by 20 state attorneys general. While there is no doubt that the plaintiffs object to the substance of the Department’s position, the primary legal claim concerns whether the Department violated the Administrative Procedure Act by issuing guidance documents without notice and comment. On this issue, the Court concluded that the plaintiff State was likely to prevail on the merits and that the district court did not abuse its discretion in issuing the preliminary injunction. In particular, the court concluded that these documents, although described as guidance, were in fact legislative rules subject to the procedural requirements of the APA. Specifically, the court recognized the states’ argument that the guidance document actually imposed new legal obligations on them and did not merely spell out how Commerce interpreted and expected to apply pre-existing legal obligations.
Before discussing the merits, however, the panel must address the government’s arguments that the plaintiffs’ briefs lack standing, that the guidance documents are not final agency actions subject to judicial review, and that judicial review of these actions is precluded. These are issues that often arise in lawsuits challenging agency actions that may have the force of legislative rules but are not characterized as such. It was these preliminary questions—particularly the question of position—that divided the justices. Judge Boggs held that the document at issue was more appropriately characterized as an interpretive rule or policy statement and, therefore, was not the kind of final agency action that would be subject to judicial review or that might cause harm necessary for jurisdiction.
Given that the decision focused on administrative law issues, both opinions did little to address the underlying issues of: bostockThe explanations in Chapter 7 also apply to Chapter 9. If states ultimately succeed in resolving procedural challenges to the Education Department’s position, it could be some time before a federal appeals court rules on the issue.
