Title IX and the Major Questions Doctrine

[Music]

 

Sam Fendler:  Hello, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I'm an assistant director of practice groups with The Federalist Society. Today, we're excited to host “Title IX and the Major Questions Doctrine” featuring Jennifer Braceras and Professor Daniel Farber. Our moderator today is Farnaz Thompson. Farnaz is currently a partner at McGuireWoods LLP. An experienced litigator, her practice is focused primarily on labor and employment law and the education industry. Among other roles, she has served as deputy general counsel at the U.S. Department of Education and as in house counsel at the University of Virginia. If you'd like to learn more about today's guests, you can read their full bios on our website, FedSoc.org.

 

After our speakers give their opening remarks, we will turn to you the audience for questions. If you have a question, you can enter it into the Q&A function at the bottom of your Zoom window and we'll do our best to answer as many as we can. Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. And with that, Farnaz, thank you very much for joining us today and the floor is yours.

 

Farnaz Farkish Thompson:  Thank you, Sam. It's an honor to introduce our panelists today. Jennifer Braceras is a member of The Federalist Society board of visitors and the director of Independent Women's Law Center. She also is a former member of the U.S. Commission on Civil Rights. Miss Braceras is an expert on Title IX of the Education amendments of 1972 and has taught courses on civil rights and constitutional law at both Boston College Law School and Suffolk University Law School. Miss Braceras is a graduate of the Harvard Law School where she served as an editor of the law review. After law school, she clerked for two federal judges and practiced labor and employment law in the Boston Law Firm Ropes & Gray.

 

I also am pleased to introduce Dan Farber who is a Sho Sato Professor of Law at the University of California Berkeley. He is also the co-director of the Center for Law Energy and the Environment. Professor Farber serves on the editorial board of Foundation Press. He is a member of the American Academy of Arts and Sciences and a life member of the American Law Institute. He also is the editor of Issues in Legal Scholarship. Professor Farber is a graduate of the University of Illinois where he earned his bachelors, masters, and juris doctor degrees. He graduated summa cum laude from the college of law and served as editor in chief at the University of Illinois Law Review. After graduation from law school, he was a law clerk for Judge Philip Tone of the U.S. Court of Appeals for the Seventh Circuit and then for Justice John Paul Stevens at the Supreme Court of the United States.

 

Today, we'll be discussing the holding in West Virginia v. EPA in the context of Title IX, a law prohibiting discrimination on the basis of sex and education programs and activities. The Supreme Court held in West Virginia v. EPA that the major questions doctrine requires Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance. Today, our esteemed panelists will discuss what constitutes a major question and whether elements of the modern Title IX administration constitute a major question that Congress is best suited to consider. With that, I welcome Jennifer and her remarks. Thank you so much, Jennifer.

 

Jennifer Braceras:  Thank you for having me. So I'm going to start off and just provide a little background on Title IX. And I think that will help us elucidate whether or not the Department of Education has gone too far, perhaps not far enough, but arguably too far in how it’s regulated or expanded application of Title IX. Most people in my world -- in my non legal world -- when you mention Title IX, they think of it as a sports law. But Title IX is actually both much broader and much narrower than that. It's broader because it prohibits discrimination on the basis of sex in all educational programs or activities that receive federal money and that of course includes but is not limited to sports. But it's narrower than that because it's not a general sports law that addresses how sports are to be run in colleges. Really it does no more than require schools not to discriminate on the basis of sex in athletics.

 

The statute, as most people know, was passed in 1972 with, really, the express purpose of ending discrimination against women in education particularly with respect to admissions, opportunities and services provided by colleges and schools, and also employment at educational institutions. But even though the purpose was to open up opportunities for women and girls, the text of the statute doesn't talk about women and girls, and it's not limited to preventing harm to women. On the contrary, the express language of Title IX prohibits discrimination on the basis of sex, meaning that it prohibits dispirit treatment of either sex, male or female.

 

So I think for our discussion today, what's really important is that the statute makes no mention of gender or gender identity. It simply prohibits sex discrimination. Now, Congress is of course free to add other categories to Title IX but to date, it has not done so. And in fact, legislation including most recently the proposed Equality Act which would add gender identity to the categories protected by federal civil rights law has failed to pass Congress. And such proposals have failed, actually, multiple times. So perhaps because of that, the Department of Education has issued a rule now that redefines sex to include gender identity. That's not the only thing that the rule proposed last summer does. It also redefines sexual harassment law, gets very detailed about how schools are supposed to adjudicate claims of sexual harassment or assault. I would argue that it guts due process protections for the accused, that it guts free speech on campus, and that it undermines parent's rights in the K-12 system, and generally just creates a monstrosity of woke mandates on every facet of public and private education from kindergarten through graduate school even making schools liable for things that happen off school grounds and outside the control of the school.

 

So there are a lot of ways that I believe the regulations far exceed the scope of the statute and legislate major questions that Congress has not weighed in on. But the redefinition of sex to include gender and gender identity is probably the most sweeping way that it does it as it would basically require every educational institution to allow biological men to self-identify into women's locker rooms, sororities, dorms, and other previously female only spaces. And probably what people have heard the most about is it would allow them to self-identify onto women's sports teams.

 

Now, just to be clear, this rule claims that it's not specifically about athletics, and the department says they are going to issue a separate rule dealing with athletics in the near future. I think that's a duplicitous sleight of hand or a PR stunt if you will because the rule that they issued defines sex to include gender identity across the board without exception. Doesn't make an exception for athletics. Doesn't make an exception for any aspect of the educational experience, therefore it applies to athletics. And I think what they're really going to do -- I think they will issue a specific sports related rule, but it will be really granular in terms of outlining how athletic teams are to incorporate trans identified biological males, what the testosterone levels have to be, do they have to defer to the NCAA, to the USA swimming, USA rowing, whatever. And it'll get into very, very detailed regulations.

 

And I think the reason that they put off explicitly addressing sports in their proposed regulation was partly to avoid controversy before the midterms and frankly partly to avoid maybe having this struck down on separation of powers grounds or because of the major questions doctrine. The problem with redefining sex to include gender identity in the sports context at least is that it sets up an insurmountable conflict for schools -- conflicting legal obligations. It's not possible to both provide equal athletic opportunity for women and at the same time to allow a biological male to take a roster spot from a woman on a team. So under the current interpretation, schools will be violating Title IX regardless of what they do. And that doesn't seem to be something that Congress would have wanted to create.

 

So the question is, where does the department get the authority to reinterpret sex to include gender identity? And the answer that the department gives is the Supreme Court ruling in Bostock v. Clayton County. And that case held that under Title VII, the employment discrimination law, an employer who discriminates against a transgender employee actually does discriminate on the basis of sex. And the reasoning in that case was somewhat, in my view, convoluted but the Court basically said that -- it didn't say that sex includes gender identity or that it's synonymous with gender identity. What it said was that when an employer fires a male employee, for example, for presenting as a woman but that employer would not have fired a similarly situated female worker from presenting as a woman then the employer has treated them differently and disfavorably on the basis of sex. So therefore, a male who identifies as a woman, if they're fired for dressing as a woman, has been discriminated against in violation of Title VII.

 

Now, the Court was pretty clear that they were only addressing Title VII. They were not addressing other civil rights statutes and I think that it's pretty clear that the reasoning doesn't make sense in the Title IX context. In the Title VII context, the Court stressed that an individual's employee's sex is not relevant to the selection, evaluation, or compensation of employees. That is true but many situations covered by Title IX, sex is quite relevant including the provision of locker rooms, dormitories, any private spaces, sex is extremely relevant. It's particularly relevant in the athletic context where really if you didn't have separate teams for men and women, women would have very few opportunities to play serious sports at the college level or at the high school varsity level.

 

So sex is -- it's not just relevant in the athletic context, it's basically dispositive which makes Bostock's reasoning completely inapplicable in my view. I think also, just going back to the statutory texts as well as the texts of the older regulations, Title IX is explicitly binary. Immediately after the section where it prohibits sex discrimination, the statute goes on to refer to both sexes meaning two which would make no sense if it were being used to describe a whole range of identities. The statute explicitly talks about men's and women's organizations.  The membership of which is limited to persons of one sex. And it talks about reasonable comparable activities, requires them to be provided for students of the other sex. Again, singular, and the regulations that govern sports specifically talk about both sexes.

 

So saying now that the statute really meant to include any number of gender identities just seems to be completely contrary to the language of the statute, to the language of previous regulations, to the structure of the statute and how we enforce it, and it doesn't seem to make any sense at all. Bostock was also decided before the more recent West Virginia v. EPA case which you talked about in your introduction. That case was decided in a totally different context but the Court was pretty clear that in extraordinary cases of political and economic significance, the agency must be able to point from a clear statement from Congress to justify its rule making and there certainly is no clear statement from Congress here that the purpose of Title IX was to allow Leah Thomas to compete on the women's team at the University of Pennsylvania or anybody like Leah Thomas.

 

Professor Farber will talk more about the major questions doctrine, but suffice it to say, I think there's not only no clear statement from Congress here, as I said before, Congress has actually considered similar language and opted against it. So that's basically how I think the major questions doctrine applies to the gender identity question. Outside the gender identity context, there's an argument that these new regs go far beyond the statute in terms of sexual harassment, free speech, due process, and all those other things. And I would be happy to address those in the question-and-answer section.

 

Farnaz Farkish Thompson:  Thank you, Ms. Braceras. And I neglected to mention that as you have questions, please include your questions in the Q&A function of the Zoom. And as Professor Farber speaks, you're more than welcome to send us your questions so that after his discussion of West Virginia v. EPA, we may start answering your question. So thank you, and Professor Farber, we look forward to your discussion of the major questions doctrine.

 

Professor Daniel Farber:  Thank you. And it's a pleasure to be here. I'm more of an expert in administrative law than in Title IX and there are a lot of issues about the application of Title IX I'm not going to try to go into. But I will try to address whether the major question doctrine applies here. I'm going to start by taking a dive into West Virginia v. EPA. It wasn't really the first case to apply this approach. I think you can find cases going back a ways but especially some of the Covid vaccine mandate and other Covid related cases took a very similar approach. But West Virginia v. EPA is the one that really announces this as a formal doctrine and lays out the requirements.

 

Then I'm going to look at three Title IX issues. And I wanted to emphasize that I'm not really here to defend or attack the department as a matter of policy or more generally about whether there are problems under Title IX. I'm really only focused on whether the major question doctrine applies. I guess one additional thing I would point out is that the strongest advocate of the major question doctrine on the Supreme Court is Justice Gorsuch who also wrote the Bostock opinion. So I doubt that he meant to overrule his previous fairly recent opinion.

 

So let me turn to West Virginia v. EPA. The case involved Obama's Clean Power Plan which was a regulation under a really obscure provision of the Clean Air Act. And it was designed to cut carbon emissions by forcing utilities to shift away from using fossil fuels and especially from using coal. The majority opinion was by Chief Justice Roberts. He said that the case involved a major question and he pointed to four factors. I want to say we don't know exactly how these factors are defined or whether they're all equally important. We may get some more guidance from that when the Court issues a ruling in a case that was just argued the other day about student debt forgiveness where -- as I say, we may get some more guidance. So at this point, we have to go with what the West Virginia case does.

 

So the first factor is the great economic and political significance of the power claim by EPA. And the Court viewed this as claiming a power to eliminate coal as a source of fossil fuels. The unprecedented nature of the regulation because it's -- the kind of regulation EPA was trying to do here was very different than what it normally does in regulating pollution from power plants or factories or other sources. The obscurity of the provision EPA was invoking -- and I want to say this really -- I teach in this area, and this really was an extremely obscure provision until it came up in this setting and the fact that numerous bills had been introduced into Congress to do something similar. One of them actually passed the house but they had been ultimately rejected. And I think it's notable that after the one that passed the house failed, Obama said that he had a pen and a phone, and he wasn't going to acquiesce in what Congress had done.

 

Justice Gorsuch wrote a concurrence which Justices Alito and Thomas joined, and he argued for a similar but I think more muscular version of the major question doctrine. But that was a concurrence. He didn't necessarily speak for a majority. And my read, which could be disproved wrong as we get more cases, is that Roberts and Justice Kavanaugh may have a more confined vision of the major question doctrine than the three most conservative justices on the Court.

 

So let me turn to Title IX and the regulations. The department says at least that it's not defining sex. That it's at least primarily addressing the term discrimination on the basis of sex. So it's "On the basis of," that's really the critical thing and that's more or less what the Court did in Bostock. We don't know exactly what the proposed regulation will look like. It doesn't seem to me like an issue of great economic significance. The cost implications -- maybe there are cost implications that aren't obvious but most of the regulation it seems doesn't raise those questions. And the Court has always said economic and political significance. I'm not an expert on Title VII either although I know more about it than Title IX, but the restrictions on discrimination against students or staff based on sex based stereotypes or sexual orientation do seem roughly along the lines of protections given employees under Title VII and I really don't see -- I'm not seeing a huge political pushback against those in the Title VII context.

 

It also doesn't seem shocking that an agency charged with preventing sex discrimination should try to define what "On the basis of sex discrimination," means. So altogether, putting aside the sports issues and maybe some of the other issues relating to transsexuals, the bulk of the regulation seems like things that are not dramatic -- really dramatically likely to get public attention. I don't know that there's a huge amount of public support for example for kicking kids out of school if they come out as gay. And it seems to me pretty plausible for the department to do something about that. Or for example, for punishing conduct by female students for being unladylike where similar conduct by men might be permissible. I think that the issue of transsexuals in women's sports is more difficult but I still don't think it fits the four part test. It has, I think, potentially great political significance but not necessarily economic significance. It's not, for example, abolishing a whole segment of college sports.

 

Given Bostock, it's not exactly unprecedented if women's pro teams under Title VII might have to consider hiring transsexual players. I don't think it's a wild leap to say that college teams have to include them. I do think -- thinking back in the Title VII context, I think there could be an argument say about women's pro teams that sex is a BFOQ, bona fide occupational qualification and one reason -- it could be that Jennifer is right about what's going on and the department is thinking but they may also be thinking that in the women's sports setting that something along the same lines as the BFOQ exception might be applicable here given the need to maintain women's sports as a separate category which the statute I think and history clearly recommend.

 

In terms of the sexual harassment rules which are certainly something of interest to me because they apply to faculty and students and staff at universities, I think one can debate the rules and there are courts that have raised due process concerns about some of them but again I don't see great economic significance to the sexual harassment rules and they're not as politically salient as transsexuals in sports. Those harassment rules involve procedural changes which don't have the same level of controversy and the agency has repeatedly taken positions on the issue in the past in the form of dear colleague letters that, for all practical purposes, amount to regulations. So again I really don't think that those are major questions. They may or may not be legally valid otherwise.

 

So I want to repeat again that I'm not necessarily defending these rules in terms of policy or legal validity but unless major question is just a synonym for really controversial, I have a lot of trouble seeing how the major questions doctrine applies. We're really I think into everyday important legal arguments about whether these agency actions are unlawful that involve using the normal legal tools of interpretation of texts, structure, and precedent the courts normally use to decide cases. A lot of people both on the left and the right have read West Virginia v. EPA much more broadly I want to say. I'm probably in a minority in thinking that it's a really important but relatively limited holding.

 

I think many people view West Virginia v. EPA as basically blocking any really hot button regulatory action. Liberal commentators just think it's terrible and a license for the Court to just impose conservative values wherever it wants to. Conservatives may think that's great but I think both sides are somewhat victims of their own preconceptions about the Court's ideological orientation and how that translates into law. It could well be that this is right and that basically anything that gets enough air time on FOX News is therefore a major question but I don't really think that's true, and I think that at least at this point we have to take the West Virginia opinion at its word and assume that the factors that the Court relies on there are going to be the factors that it will apply in later cases.

 

I'm looking forward to the rest of the discussion, and I'm looking forward to learning more about Title IX law in particular from Jennifer. As I said, my intervention is about what I think is the poor fit between the regulations we're talking about here or possible regulation in the case of transsexuals in sports and the opinion that the Court gave us in the West Virginia case. Thank you.

 

Jennifer Braceras:  So I have a question actually because I -- not knowing that much about the major questions doctrine, I don't know how much of an emphasis the Court places on economics. And I see what you're saying about the interpretation of "on the basis of sex," not invoking that many financial concerns. But the one thing I would say is that it differs from Title VII in the sense that Title IX involves millions of dollars of contractual relationships between educational institutions and the federal government. Because it's a spending clause measure and potentially all federal funding is threatened if a school doesn't comply with it, I do think there's more of an economic component than there might seem to be at first blush. That said, I do think -- I guess there has to be something in between "Everything that's a controversial issue on the news is a major question," and "Only things that cost a trillion dollars are a major question." So it has to be somewhere in between that.

 

I do think the definition of discrimination on the basis of sex and frankly, providing equal opportunity for women is a pretty significant question in that it affects more than 50 percent of the population and everyone goes to school for the most part. So not everybody engages in certain forms of commerce or what have you but everyone goes to school. So it has a major impact on a large segment of the population at least.

 

Professor Daniel Farber:  Yeah. I think the Court has never really -- they haven't even really defined what counts as a major economic significance. In West Virginia v. EPA, they cited estimates that compliance would cost several billion dollars a year as part of the economic significance but I think -- it's not clear whether it was the dollar amount or the thought that you would basically be abolishing all sector of the industry that was more important. None of the opinions are really clear about that. I think the fact that a lot of people are affected is significant. I think in the vaccine mandate case where there was a vaccine mandate that applied to the whole population, every worker, I think the fact that just about everybody I guess not all Americans or even all Americans of working age are in the workforce, but an awful lot are, and I think that probably did have some impact on the definition. I think the biggest problem with the major question doctrine is that the Court has not really given us, even under my view, a very clear understanding -- I mean, for example, the Court stressed that the Congress had considered and rejected the legislation and that was one of the things that made it constitute a major question.

 

Jennifer Braceras:  Which is one of my points here.

 

Professor Daniel Farber:  Yeah. And one of your points too. But I think we need more guidance about how to apply that because almost anything that anybody cares about at all and that affects some industry, you're likely to find a lot of bills introduced. And so how do we draw that line? Now, I think this is a little bit different than the case where, I don't know, there's some regulation affecting the dairy industry and the Wisconsin congressional delegation introduces bills or something. I mean, clearly there's more serious legislative interests in these issues but I don't think the Court's told us where to draw the line. And I think West Virginia was relatively an easy case that way because there was really major -- maybe I should avoid that term -- substantial interest in Congress and it was really pretty clear that the administration was trying to do an end run after they tried Congress. They couldn't get what they wanted.

 

Jennifer Braceras:  But isn't that exactly what the department is doing here? They couldn't get the Equality Act passed so let's just regulate.

 

Professor Daniel Farber:  I don't know. I mean, maybe.

 

Jennifer Braceras:  I mean, the intervening thing is the Bostock decision, right?

 

Professor Daniel Farber:  Yeah. Right. Yeah.

 

Farnaz Farkish Thompson:  And the one thing I'll just ask is, what is -- does it matter what the agency says about its own rule? So in the notice for proposed rulemaking, the agency is saying this is economically significant under executive order 12866. Is that at all something that a court may consider to determine whether it's economically significant for purposes of the major question doctrine?

 

Professor Daniel Farber:  So I would say it's something you could consider but the cut off -- there are a lot of regulations that meet that economic significance requirement which is a hundred million dollars a year. So it's not nothing. It was set in 1981 when a hundred million dollars a year was more money than it is today. But there are a lot of regulations of industry that nobody's ever heard of basically that meet that test. So I think if Jennifer is right that women's sports could collapse as a result of including transsexuals that I think would be much better case for major questions.

 

Jennifer Braceras:  I think it's important not to be hyperbolic and say that women's sports are going to collapse in their entirety. What is going to happen and what has already happened is that male bodied athletes will take spots from individual women on teams on the playing field, they'll take lanes in the pool, they'll take podium spots, awards, all American scholarships perhaps. And each of those is an individual act of sex discrimination against the woman.

 

Professor Daniel Farber:  Right. I do think that the sports issue is harder because there are not that many cases where your muscle mass and bone structure and so forth -- differences between genders -- are relevant. They're not relevant in most educational activities, for example.

 

Jennifer Braceras:  Right.

 

Professor Daniel Farber:  And the reason we have women's sports is at least because we think those things and maybe hormone levels in particular are basically relevant and that does make it I think somewhat a special problem. Now, other aspects may be less so like the locker room issue, for example. And maybe that's something that the department wants to deal with.

 

Farnaz Farkish Thompson:  And we do have some questions from the audience that we probably should address. So let's just assume that the Title IX in athletics -- that issue is a major question. There's a question from our audience about whether Congress gave the Department of Education the authority to define sex in a manner that's nonbinary. And so is that, assuming it is a major question, may the Department of Education deviate from the -- define sex in a nonbinary manner?

 

Jennifer Braceras:  I would say no because of how the statute is written with constant references to both sexes, meaning two or the opposite sex, meaning one. And look, it was passed in 1972. The phrase "gender identity" didn't make it into federal law at all until at least the 1990s when I think it was mentioned as an exception to the Americans with Disabilities Act if I'm not mistaken. So nobody was thinking about gender identity in 1972, but it was very clear that the statute was being written to protect disparate treatment of similarly situated students or faculty on the basis of binary sex, biological sex. And Congress can change that. They can amend Title IX to add gender identity and to make it nonbinary, to take out the words both and opposite and things like that. I mean, Congress can do that tomorrow if it wants to. It hasn't done that.

 

Professor Daniel Farber:  So I'd like to just add two things. One is, I do think that there are somewhat stronger grounds saying that they're defining discrimination on the basis of sex rather than redefining sex. At least that potentially helps them with at least part of the argument. The other thing I would say is I would find Jennifer's arguments stronger without Bostock. I think Justice Alito who dissented in Bostock was right that Congress in its wildest dreams -- if you think they weren't considering gender identity in 1972, they certainly weren't in 1964 --

 

Jennifer Braceras:  Right.

 

Professor Daniel Farber:  -- when Congress passed Title VII.

 

Jennifer Braceras:  But Title VII doesn't use terms like "both."

 

Professor Daniel Farber:  Yeah, I know. It's not -- and I think that could be a distinction but -- and I think there's a really strong argument that, yeah, if you want to -- I think a lot of people had assumed if you want to cover discrimination on the basis of say sexual orientation, you got to amend the statute but the majority of the Court didn't buy that. And that makes it less clear to me at least that they're going to have the feeling that Title IX is totally different.

 

Jennifer Braceras:  But I think that Justice Gorsuch was pretty clear that sexual orientation and how you identify, or present is not relevant to whether or not you can do a particular job, right? That was the crux of his point. Whereas it's not just relevant in sports, it's dispositive. Not sexual orientation but sex itself is dispositive. Sex -- whether you're a man or a woman is irrelevant to whether you can perform a job and therefore the same is true, is his argument, for sexual orientation and transgender status. But sex itself is dispositive in sports and it's dispositive -- well, it may not be dispositive but it's certainly relevant when it comes to who you're going to live in a dorm with, who you're going to share a locker room with, who you want to join a sorority or fraternity with. It's relevant. It's not relevant at all to whether or not you can be a funeral director.

 

Professor Daniel Farber:  I guess I would say at least in some contexts it seems to me it is irrelevant. After all, Title IX covers a lot of things like harassment, like discrimination in grading or access to courses, or other activities. And in many of those settings, it does seem like whether you're gay or not gay, for example, is pretty irrelevant to what grade you should get on a paper in your English class.

 

Jennifer Braceras:  Yeah. Of course. And like the example you gave earlier about if somebody is getting kicked out of school because they come out as gay but that's not what we're talking about here. We're talking about situations where your biological sex makes a difference. And men and women are not the same. We're equal but we're not the same. Sex is not like race where we're interchangeable. And that's the crux of the issue here. That is the real crux of the issue.

 

And to be honest with you, I think the Court made a big mistake in tying Zarda and Bostock together and discussing sexual orientation and transgender status in the same case because they're not the same but the real issue we're talking about is biology, male and female and whether or not males and females are interchangeable. They are not. And therefore, the sex you were born is relevant not in intellectual pursuits or in most jobs but in other areas. Even in some jobs which is why Title VII has a BFOQ exception because we recognize that in some cases, sex can be relevant in the workplace. Usually it's not.

 

I'd like to talk about sexual harassment a little bit if we can because I think what's so interesting about that is -- and I think your average person doesn't realize that there is no federal law prohibiting sexual harassment. Sexual harassment is only unlawful as a species of discrimination. And the Court has been very clear both in the workplace context and in the education context that something can rise to the level of discrimination -- if a workplace is so sexually charged or a classroom is so sexually charged that one sex isn't able to perform its job or access the education or is being treated in a derogatory fashion, that is discrimination.

 

Likewise, if women are complaining that they're being assaulted, and the school does nothing, but a man complains that he's assaulted, and the school kicks the perpetrator out, that's sex discrimination because they're not taking the complaints of one sex seriously. But every dirty joke that's said in a dormitory or even in a classroom or a workplace does not violate federal law. And the problem with the regulations imposed by the Department of Education is it vastly expands the category of activity that can count as a federal violation beyond the discrimination context. So that's a whole separate issue separate from the biological sex versus gender identity issue, but that is a whole other way in which the agency has gotten away both from the statutory requirements and the jurisprudential contours of sexual harassment law.

 

Farnaz Farkish Thompson:  When you say that about the definition of sexual harassment, are you referring to the proposed definition as severe or pervasive or the current definition in the regulation which is severe, pervasive, and objectively offensive?

 

Jennifer Braceras:  Well, yeah. The 2020 regulation codified Supreme Court precedent. So the 2020 regulation tracked what the Court has said about it but even that isn't enough in my view because the Court has been clear that one sex has to be treated differently than the other. I hate to say it because it's bad and it should be punished under state law, but if you have an employer who's sexually harassing everyone in the workplace, male, female, trans, gay, everybody regardless, that's not discrimination, that's just bad behavior. And it might be unlawful under state law and should be but it is not a violation of Title VII. And the Court has always cabined its sexual harassment jurisprudence. It's been so careful to say that sexual harassment can rise to the level of discrimination. It isn't always in and of itself discrimination. And when it's not, it doesn’t violate Title VII and it doesn't violate Title IX but somehow the agencies have decided any time an employer or a professor is being a jerk to everybody, they've committed a federal violation. And that's just not true.

 

Professor Daniel Farber:  So we have to -- under state law, we have to do two hours of sexual harassment training a year. And I just happened to finish mine because it was due April 1st. And it's a video -- interactive video kind of thing. And of course, the university wasn't claiming that they were only enforcing federal regulations or whatever, but it was an example of how at least in some quarters, sexual harassment issues are being interpreted in a very broad way. And of course, university can go beyond what federal law requires as long as it doesn't run into the First Amendment --

 

Jennifer Braceras:  And it should.

 

Professor Daniel Farber:  Yeah. But I think it's true that there's a lot of confusion also, say among administrators, about what constitutes sexual harassment and what doesn't.

 

Jennifer Braceras:  And the reason there's confusion among administrators is because the Department of Education has been telling them for a couple of decades now that every time a professor sleeps with a student there's been a federal violation. That is not true if it's consensual. I mean, they've turned it into that, but the Court has never said that. The law doesn't say it. So there's a lot going on here at the Department of Education that is well beyond the simple antidiscrimination mandate of Title IX. I mean, Title IX says one thing, don't discriminate on the basis of sex. And then it has a bunch of exceptions for single sex things. So that's all it says. And we've created this labyrinth of mandates over the decades but in particular with this rule proposed by the Biden administration last year that it has its tentacles in every aspect of the educational relationship from kindergarten through graduate school.

 

Farnaz Farkish Thompson:  Yeah. And that's definitely a point to consider. We have quite a few questions on the major questions doctrine. And I'd like to just make sure you both get a chance to answer them. So one of the, I guess, criticisms of the major questions doctrine is that it will lead to interest groups generating a lot of fuss about a particular issue to elevate them to the point of being a major question. Do you see that as being the case here with some of the issues that you've discussed under Title IX?

 

Professor Daniel Farber:  I guess as the one who's more skeptical about the major question applying, I don't think -- I think there has obviously been a political effort to elevate these issues and that is currently maybe motivated by a desire on the political side to appeal to the republican base but I don't think in this case it's necessarily that the motive is trying to elevate it to a major question. I do think that there is a risk that there will at least be efforts to elevate issues to major question, and that a lot of it will depend on what the media chooses to elevate, what, for example, Tucker Carlson decides to talk about. And that is one reason why I think the political significance prong is something that the Court's going to have to be very careful with. And also true on the other side. I've been talking about -- we've been thinking in terms of issues that are controversial with conservatives but you could imagine liberals in some cases trying to do the same thing and elevate an issue in the hope of having a stronger legal argument. I think mostly people are not that legally calculating -- people in the media or politicians. But I wouldn't rule it out.

 

Jennifer Braceras:  I don't think most people have ever heard of the major questions doctrine including probably the majority of lawyers, and so I don't think that people are elevating issues or making a big stink about them because they think that it might influence Justice Gorsuch who they can't pick out of a line up. I think activists are elevating issues they care about on both sides. I think -- I want to give them the benefit of the doubt. I think climate activists and defenders of women's sports and pro-lifers and pro-choicers are elevating issues that they feel passionately about and they feel that they can make a difference. I don't think they're playing games with Justice Gorsuch.

 

Farnaz Farkish Thompson:  You both mentioned Bostock and the Court's ruling in Bostock. Do you have thoughts on the Eleventh Circuit recently upholding the ability of a school to provide sex segregated bathrooms and that discussion of Bostock in the Eleventh Circuit case?

 

Jennifer Braceras:  So I think the Eleventh Circuit opinion was a correct interpretation of Title IX. The particular case involved a bathroom but the ruling was not about a bathroom per se. The ruling was about whether or not Title IX prohibits discrimination on the basis of sex or on the basis of gender identity and whether discrimination on the basis of gender identity is part and parcel of discrimination on the basis of sex. It was a much more theoretical opinion and a statutory interpretation opinion. The Court did note that, in particular, this was a school district that had accommodated the transgender students by providing single use single stall private bathrooms and that in fact the policy was developed years ago in consultation with LGBTQ consultants. And so they did note that there was no animus there. This was the policy that they had developed in good faith. So there was no animosity there when they were considering the equal protection clause portion of the challenge. So it was based on two things, the equal protection clause and Title IX, and I think that their statutory interpretation of Title IX was correct and calls into question the legality of these regulations certainly in that circuit.

 

Farnaz Farkish Thompson:  Professor Farber, do you have any thoughts? I think there's a circuit split currently with the Fourth Circuit basically interpreting Title IX to also mean gender identity with respect to bathrooms and similar facilities and the Eleventh Circuit obviously just opined in the opposite manner.

 

Professor Daniel Farber:  So I haven't really focused on this issue closely and it seems like a fairly obvious issue for Supreme Court review given its circuit split, and I can't read Justice Gorsuch's mind so I'm not sure what the Court's going to do with it and obviously, they're two different statutes. Title IX has its own history and its own language, but given Bostock, I just find it very difficult to know. It seems to me there are a lot of the arguments here that really kind of applied in Bostock too. And regardless of their merits, they didn't win. So I think it's going to be difficult. Maybe the Court will try to find some middle ground.

 

Jennifer Braceras:  I think these are cases that are crying out for a resolution by the Supreme Court. The problem is, I don't know whether they'll get there because on the one hand, the more progressive side, I think, is hesitant to appeal to a court that they perceive -- to request cert from a court that they perceive as not friendly. But there's another issue which is that most of these cases, whether it involves sports or free speech issues or otherwise it involves students. We're talking about Title IX. So it involves students. And students grow up and they graduate and these cases take a long time to wind their way through the courts. And the Second Circuit has held, for example, in one of these cases that the girls don't have standing to bring the case because they graduated. And I know that may be heard in Boston but the point is that I think there are a lot of procedural and political hurdles to getting this before the Court at all. Although, without Supreme Court resolution, we're going to have a lot of conflicts between state and federal law, conflicts between circuits, conflicts between administrative law and statutory law. So we're going to have a lot of conflicts all over the country on Title IX and I hope the Supreme Court resolves them.

 

Professor Daniel Farber:  I would think that if the department comes forward with regulations, that would make it difficult for the Supreme Court to avoid.

 

Jennifer Braceras:  Someone has to ask for cert, so it depends, right?

 

Professor Daniel Farber:  That's true. That's true. But I think from the department's --

 

Jennifer Braceras:  They're not going to reach out and grab it.

 

Professor Daniel Farber:  But it's also possible that some district judge might issue a nationwide injunction or something like that and not leave any choice to the department about whether to take it to the Supreme Court. I think we'll --

 

Jennifer Braceras:  There's also something else that we haven't mentioned and that's the Congressional Review Act. I mean, the truth is that if Congress were really all that concerned about these agencies usurping their power, there is something they can do about it. And unfortunately, they don't seem to have an appetite for that. Although I think that Representative Buck and maybe -- Ken Buck and Miller -- may have in the last Congress said they were going to put forward a Title IX Congressional Review Act resolution. With the current senate, that would be unlikely to pass but I'd like to see Congress take back some of their power or at least try to.

 

Professor Daniel Farber:  Yeah. I think the other problem is that the Congressional Review Act really only works when there's been an intervening election because those resolutions are subject to presidential veto. And it's just not very likely that Biden would sign a bill overruling his own agency.

 

Jennifer Braceras:  Right. But it would still be nice to see them at least try to assert that this is beyond the scope of what this body intended and that would at least elucidate the issue for the public who doesn't necessarily understand the separation of powers issues. If Tom Cotton were to take to the floor and say the Department of Education has usurped this body's power, people would listen. They'd start to understand, I think, some of the constitutional issues.

 

Professor Daniel Farber:  Yeah. Well, the house at least does seem to be taking a greater interest in using the Congressional Review Act. They've had a couple of regulations, environmental regulations, one where they passed the resolution and one where I expect that they will, although I can't be sure. So it may be that we'll see more activity in that. I think politically it might be an easier thing to get the republican caucus to agree on than some other legislation. So we might see more of that and I wouldn't be surprised to see it in particular if they come down with a rule governing athletics. But my crystal ball isn't all that great, so we'll see.

 

Farnaz Farkish Thompson:  Well, thank you for a lively discussion, and we know we have a lot of questions, and we can answer some of those by email. We appreciate your time, and we thank you so much for attending this webinar.

 

Sam Fendler:  Thank you very much. Farnaz, I want to thank you and Professor Farber, and Jennifer, I want to thank you as well for your time and for your expertise. I want to thank our audience too for joining us. We of course greatly appreciate your participation. Please check out our website, FedSoc.org or you can follow us on all major social media platforms @FedSoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in and we are adjourned.