104 F.4th 577
6th Cir.2024Background
- In June 2021 the U.S. Department of Education published three documents (a Notice of Interpretation, a "Dear Educator" letter, and a Fact Sheet) announcing that, in light of Bostock, the Department would "fully enforce Title IX" to prohibit discrimination based on sexual orientation and gender identity in federally funded education programs.
- The Fact Sheet lists examples of investigateable conduct (e.g., restroom access, team tryouts, use of pronouns) and tells recipients they "have a responsibility to investigate and address" such claims.
- Twenty states operating federally funded schools sued pre-enforcement, alleging the Documents violated the APA (failure to use notice-and-comment for legislative rules), Title IX, and the Constitution; the district court issued a preliminary injunction enjoining enforcement against the plaintiff states.
- On interlocutory appeal, the Department argued the states lack standing, the Documents are nonreviewable (not final; Title IX precludes APA review; Title IX provides adequate alternative remedies), and the injunction was an abuse of discretion.
- The Sixth Circuit affirmed: it found the states had standing (proprietary, sovereign, and procedural-rights theories), the Documents are final agency action and reviewable under the APA, Title IX did not preclude pre-enforcement APA review, and the district court did not abuse its discretion in issuing an injunction because the plaintiffs were likely to prevail on the notice-and-comment claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (Article III) | States suffer imminent proprietary (loss of federal funds to state universities/schools), sovereign (preemption of state education laws), and procedural harms (denial of APA notice-and-comment) | Documents create only interpretive guidance; any injury flows from Title IX/Bostock, not the Documents | All 20 states showed a substantial likelihood of standing under at least one theory; standing satisfied for preliminary injunction purposes |
| Finality / Reviewability | Documents are binding: Department "will fully enforce" the new interpretation, withdraws prior inconsistent positions, imposes investigatory obligations and creates legal consequences | Documents are interpretive/policy statements that preserve agency discretion and do not impose legal obligations, so not final under Bennett test | Documents are final agency action (consummation + legal consequences) and thus reviewable under the APA |
| Adequate alternative remedies / Title IX preclusion | Title IX does not provide an adequate alternative; requiring states to wait for enforcement (investigation/compliance) would force them to "bet the farm" and foreclose meaningful pre-enforcement review | Any challenge can be raised as defenses during enforcement or after administrative proceedings; §1683 contemplates judicial review tied to enforcement | No adequate alternative remedy; §1683 does not implicitly preclude pre-enforcement APA review here because (1) Title IX lacks a comprehensive exclusive scheme and (2) precluding review would foreclose meaningful judicial review, the claim is collateral, and the issue is outside agency expertise |
| Merits / Preliminary injunction (legislative vs interpretive rule) | The Documents effect substantive change (impose new duties, narrow permissible sex-based separations, list investigateable scenarios) and thus are legislative rules subject to notice-and-comment; plaintiffs likely to succeed on APA claim | Documents merely clarify Title IX in light of Bostock and are interpretive/general policy not requiring notice-and-comment | Plaintiffs likely to prevail on the notice-and-comment claim because the Documents behave like legislative rules; irreparable harm, equities, and public interest favor injunction limited to the plaintiff states |
Key Cases Cited
- Bostock v. Clayton County, 140 S. Ct. 1731 (U.S. 2020) (held Title VII prohibits discrimination for being gay or transgender and provided the interpretive hook for the Department)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (Article III standing requirements)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (two-part finality test for agency action)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (U.S. 2008) (preliminary injunction factors)
- U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590 (U.S. 2016) (pragmatic approach to finality)
- Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (U.S. 1994) (statutory preclusion / Thunder Basin factors)
- Axon Enterprise, Inc. v. FTC, 598 U.S. 175 (U.S. 2023) (jurisdictional/preclusion guidance; collateral-review analysis)
- Perez v. Mortgage Bankers Ass'n, 575 U.S. 92 (U.S. 2015) (interpretive vs. legislative rule distinction principles)
- Sackett v. EPA, 566 U.S. 120 (U.S. 2012) (pre-enforcement review precedent)
- Kentucky v. Biden, 23 F.4th 585 (6th Cir. 2022) (state standing via proprietary/sovereign interests)
- Mann Construction, Inc. v. United States, 27 F.4th 1138 (6th Cir. 2022) (legislative-rule characteristics and notice-and-comment requirement)