Wednesday, December 07, 2016

On The Chopping Block

This is something that we can expect to be a top target of the new administration, our only hope is that the Supreme Court hears the Grimm case before January 20th.
The New Yorker
By Jeannie Suk Gersen
December 6, 2016

President Obama’s mantra for the past year has been that Congress is broken, so the executive will act. And now, as the stage is set for the new executive, it is dawning on Democrats that living by that sword may mean dying by it. A President can unilaterally revoke prior Presidents’ unilateral actions, and we may soon see just that, in response to Obama’s moves on immigration, climate change, and gun control.

Among the myriad areas subject to upheaval is the President’s administration of Title IX, the 1972 law that prohibits schools that receive federal funding from discriminating “on the basis of sex.” The civil-rights statute has been the primary federal guarantee of equality in educational opportunity for male and female students. This Administration has raised Title IX’s profile by directing schools to take certain actions regarding sexual violence and transgender students, or risk being defunded.
And this is what is at stake, not only Title IX protection but also Title VII employment protection.
Now the Supreme Court is set to hear Grimm’s case. The Court is supposed to decide whether O.C.R.’s [Office of Civil Rights] interpretation of the phrase “on the basis of sex” is entitled to judicial deference. In other words, should the agency’s interpretation carry the day even if it is not one that the Justices think is best? If so, the Court would effectively convert the executive agency’s informally expressed views into the law of the land, because O.C.R. is supposed to be expert in civil rights in education.

The tricky part is that many expect the expert agency’s views to change shortly after January 20th, when Trump’s O.C.R. is installed. (Dear Colleagues: Never mind, we take it back.) Come January, advocates of transgender rights, who have enthusiastically supported judicial deference to O.C.R., will have reason for an extreme pivot, given that the new O.C.R. is unlikely to view “sex” as an “internal sense of gender.” It is awkward now for Grimm’s lawyers to argue zealously for the notion that the agency knows best, when only weeks from now, and in coming years, that doctrine is more likely to harm than to help transgender students. One of the lead attorneys, Joshua Block, of the American Civil Liberties Union, told me that the brief for Grimm to be filed in January will urge the Court to put aside the question of deference to the agency, because even without it transgender students’ right to use bathrooms matching their gender identity “is the only interpretation consistent with the statute,” Title IX. But to the extent that the Court does find ambiguity in the term “sex” in Title IX or the regulation, he said, he will advocate for deference to the Obama Administration’s interpretation.
If the case is heard after January 20th the Trump administration’s lawyers might withdraw the case and ask for a ruling in favor of the Virginia school district. Or they could…
If the Court does go ahead and decide the case this term, then the conflicting Trump and Obama interpretations, so close in time, from the same agency, would likely convince the Court to treat O.C.R. as not having a consistent and considered view worthy of deference. Better yet, though, the Court should take the occasion to say that a mere letter, whatever its content, does not merit judicial deference, precisely because it bypasses the process of public input that we should want the executive branch to adopt in forming views on important policies. That point should resonate now more than ever.
So let’s hope that the Supreme Court hears the case before the turnover or before the Senate confirms a President Trump Supreme Court justice.

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