WASHINGTON (CN) – Eighteen state attorneys general joined the governors of Kentucky and North Carolina Wednesday in supporting a challenge of the Department of Education’s mandate that schools allow transgender students to use the bathroom that matches their gender identify.
The amicus curiae brief filed Wednesday comes one month after the Gloucester County School Board asked the Supreme Court to hear its appeal of a Fourth Circuit ruling that prevented it from forcing students in its schools to use the bathrooms of the gender they were assigned at birth.
The Supreme Court has not yet agreed to hear the case, but could consider it when the justices meet for a conference on Oct. 14.
The plaintiff in the underlying case is a student at Virginia’s Gloucester High School known in court documents as G.G., who was born as a girl but self-identifies as a boy. The principal at G.G.’s high school originally allowed G.G. to use the boy’s bathroom, but complaints from parents spurred the school board to step in and stop this practice.
G.G. then brought the case to federal court in Virginia, alleging the school board’s actions violated Title IX, a federal law against sex discrimination in schools.
The court ruled against G.G., but the Fourth Circuit reversed the decision based on an unpublished opinion letter from the Department of Education that held schools must treat transgender students based on the gender with which they identify.
This interpretation meant the Education Department would be able to withhold federal money from schools that did not allow students to choose bathrooms based on their identity.
Known as Auer deference, the Fourth Circuit’s decision to adopt a federal agency’s interpretation of its own ambiguous regulation will be one of the primary questions the Supreme Court will consider if it hears the case later this term.
Led by West Virginia Attorney General Patrick Morrisey, the 18 attorneys general argue in their 32-page brief that the Education Department’s “novel” interpretation of Title IX allows a federal agency to reach into an area over which Congress explicitly granted authority to the states.
The Fourth Circuit’s reliance on the Auer deference, which takes its name from the Supreme Court case Auer v. Robbins, is the central complaint in the states’ amicus brief. They say allowing agencies to interpret their own regulations in this manner effectively allows them to create policy.
“The department thus seeks to bootstrap the Fourth Circuit’s decision, which rested in turn on the agency’s own informal opinion letter, to rewrite a federal statute and dictate national policy,” the brief reads.
The attorneys general go beyond simply arguing the Fourth Circuit was wrong to apply Auer in this case, advocating for the Supreme Court to reconsider the doctrine as a whole.
“The time has come for this court to revisit the doctrine of Auer v. Robbins – a judge-made theory of deference that has been criticized by several justices of this court,” the brief reads. “That perpetually bedevils and divides the lower courts; and that improperly concentrates an extraordinary amount of power in federal agencies to the detriment of the states and the public.”
When Congress writes into law conditions for states to receive federal funds, a power guaranteed in the Spending Clause of the Constitution, court precedent requires it to give the states clear notice of these conditions, the attorneys general said.
When an agency interprets its own regulation, however, states are at the mercy of what the agency feels about that regulation at a given time, the states claim.
The Fourth Circuit’s decision gives agencies an incentive to hand down vague regulations and use “informal pronouncements” to flesh out the regulations later, the states claim in the brief.
“This form of rulemaking would insulate agencies even further from political accountability to the detriment of the states and the general public,” the brief reads.
In this case, while Title IX long allowed schools to separate facilities based on sex, the Department of Education decided to redefine the meaning of the word “sex” based on an unpublished opinion letter, depriving the states of their advanced notice of any constraint in the law.
“To threaten the states with loss of all of their billions of dollars of federal education funding if they fail to adhere to the department’s command is, plain and simply, coercion – and this court’s federalism jurisprudence does not permit it,” the brief reads.
Furthermore, using Auer deference is an end run around the traditional practice of courts relying on Congressional intent when interpreting a law.
“Under Auer, a court provides controlling deference to an agency’s preferred interpretation of a rule without first discerning either whether that interpretation accords with Congress’s intent or whether the states had an opportunity to participate in the rulemaking office,” the states claim in the brief.
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