Maybe the title above is an exaggeration, for I also learned a lot teaching and practicing law – although my law student experience consisted mostly of left-wing theories I’ve had to unlearn.
But way back in the early 1950s, in Whittier Elementary School of Sioux City, Iowa, I sat in fourth grade under Miss Mildred Terhune, the strictest and best teacher I ever endured.
When she wasn’t disciplining me for whatever mischief I could concoct, she taught me the Bible (this was before 1963’s Abington School District v. Schempp, not that she would have cared), American history and the Constitution.
The Constitution, she said, establishes three branches of government: One branch (Congress) passes laws, another branch (the president) enforces laws and the third branch (the Court) interprets laws. When I wasn’t off daydreaming in Eidsmoeland, I listened, and sometimes I understood.
When a similar lesson came up in the schools of Pennsylvania and Delaware, Joe Biden must have been playing hooky. So was Kamala Harris – or maybe she had been sent to the principal’s office for excessive cackling. They apparently didn’t learn that administrative agencies under the Executive Branch of Article II are not to engage in legislation. They may, with strict limitations, adopt regulations for applying laws, but they may not pass laws; that is the responsibility of Congress.
This all came to a head in Arkansas earlier this month. In 1972, Congress enacted Title IX, an education statute prohibiting sex discrimination in schools that receive federal funds. The act covered such aspects as admissions procedures, scholarships and faculty employment, but specifically allowed sex-separate athletic teams provided equal opportunities were given for girls’ and boys’ sports.
However, the Biden administration adopted administrative regulations essentially rewriting Title IX. The new rule redefines discrimination to include that based on sexual orientation and identification. This means public schools must allow biological males to dress and undress and shower in girls’ facilities, and much more.
We’ve seen this before. The Foundation for Moral Law has filed amicus briefs with the Eighth Circuit in support of parents who objected to similar policies in the Linn Mar School District (Parents Defending Education v. Linn Mar Community School District, 2023), and most recently on behalf of a music teacher who lost his job because his religious convictions prevented him from calling his students by their preferred pronouns (Kluge v. Brownsburg Community School Corp. 2024). In these cases, we argued that the rules violated parental rights (Wisconsin v. Yoder, 1972), free speech (West Virginia State Board of Education v. Barnette, 1943), and free exercise of religion (Thomas v. Review Board, 1981). In an appropriate case, we will also argue a violation of the 10th Amendment which reserves nondelegated powers to the states.
But the Arkansas case involves another constitutional issue: separation of powers. Arkansas, joined by every state in the Eighth Circuit except Minnesota, filed suit in the Federal District Court for the Eastern District of Arkansas, arguing that the Biden administration had no constitutional authority to impose this rule. Congress in 1972 enacted Title IX to prohibit sex discrimination. No one could seriously argue that Congress in 1972 intended to protect gender orientation and identification. Congress could amend Title IX, but they have not done so. The Biden administration effectively amended Title IX by adding what Congress in 1972 did not enact and did not intend. In so doing, the Biden administration exceeded its powers under the Constitution, usurping the powers of Congress.
And in his 56-page July 24 ruling, Federal District Judge Rodney Sippel agreed. “At the time Title IX was enacted in 1972, the term ‘sex’ was understood to mean the biological distinctions between males and females,” he noted. The Department of Education has effectively changed the meaning of the word “sex,” amending the statute as only Congress can do. Therefore, there is a fair chance that “the Department exceeded its statutory authority in expanding the definition of sex-based harassment,” Sippel said.
Arkansas Attorney General Tim Griffin summarized it well:
Congress enacted Title IX to protect and promote educational opportunities for women and girls. This preliminary injunction halts the administration’s plan to allow men into women’s and girls’ locker rooms, restrooms, and showers. It stops the administration’s plan to allow males onto girls’ sports teams. It also protects teachers, administrators, and students from the threat of investigation or sanction for disagreeing with the gender ideology of the Biden-Harris White House. And it comes just in time before the start of the new school year.
Sippel is not alone. On June 11, U.S. District Judge Reed O’Connor struck down the rule as applied to Texas, and federal courts have issued similar rulings in Louisiana, Tennessee and Kansas.
Sippel held that schools are free to adopt their own policies, but his order prohibits the Department of Education “from demanding compliance with the Final Rule by the schools affected by this order, or imposing any consequences for such schools’ failure to comply with the Final Rule.” In other words, unless Congress amends Title IX, the Department may not force this rule upon states and school districts.
Back home in Sioux City, Whittier Elementary School closed a few years ago, and the old building has now been repurposed for apartments. Miss Terhune, God bless her, has gone home to be with the Lord. But the principles of government she taught us remain, enshrined in the United States Constitution. There are three branches of government: Congress passes laws, the president does not, nor does the Court.
Thankfully, Judge Rodney Sippel of Missouri understands that.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu) and as Senior Counsel for the Foundation for Moral Law (morallaw.org). He may be contacted for speaking engagements at eidsmoeja@juno.com.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law and Government Policy (obcl.edu) and Senior Counsel for the Foundation for Moral Law (morallaw.org). He can be reached for speaking engagements at eidsmoeja@juno.com.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819news.com.
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