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How the Supreme Court just tipped its hand on trans school bathrooms

Associated Press

Associated Press

Bathrooms have been a hot topic of conversation recently. More specifically — which one to use. President Obama joined the conversation by making an unprecedented decree that students at public schools should be able to use whichever bathroom they prefer or the school’s federal funding could be pulled.

This overreach has understandably caused quite a stir. Religious leaders have strongly rebuked the decree and state leaders are already signaling their desire to fight the mandate. Based on the strong response it is seemingly only a matter of time before the new policy faces a legal challenge. In fact, some opponents are already planning to do just that.

Unfortunately, the Supreme Court this week seemed to indicate it may be hesitant to intervene and restore sanity on the topic. This week, the Court declined to hear the case of Bryana Bible v. United Student Aid Funds, Inc. Bible sued the collection company in federal court over its handling of her delinquent student loan account. Specifically, Bible challenged the company’s charging of collection fees as unlawful. The Secretary of Education actually got involved with the case and filed an amicus brief indicating it too objected to the collection fees. Their position is peculiar, however, because both the relevant federal law and department regulations expressly permit the fees. In reviewing the case, a 7th Circuit panel decided to defer to the secretary’s opinion on the matter.

So, what does this case about a debt collection company have to do with public school bathrooms? The 7th Circuit’s decision to defer to the secretary’s opinion is based on rule called Auer (or Seminole Rock) deference. That doctrine requires courts to defer to agencies’ interpretations of their own guidance rather than allowing courts to independently analyze and interpret the regulations at issue. This case presented an opportunity for the Supreme Court to review the doctrine which has been heavily criticized since its inception. It garnered enough attention to draw a number of amicus briefs including one from the CATO Institute and another from the Utah Attorney General which was joined by 15 additional states, both asking the Court to overrule the deference rule.

By declining to hear the case, the justices of the Supreme Court indicated that they are not currently inclined to overturn the deference rule. And that decision does not bode well for those hoping that courts may be able to reverse the tide of bathroom madness. The president and his Department of Education are justifying the bathroom decree based on an interpretation of Title IX. If that interpretation is challenged, lower courts are required to give deference to the department.

Only the Supreme Court can reverse course and, as mentioned before, it passed up the chance to do just that by refusing to hear the Bible case. Justice Clarence Thomas was the loan dissenter from the Court’s decision not to hear the case and, quoting recently deceased Justice Antonin Scalia, said: “[b]y enabling an agency to enact ‘vague rules’ and then to invoke Seminole Rock to ‘do what it pleases’ in later litigation, the agency (with the judicial branch as its co-conspirator) ‘frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.’”

Just because the Court chose not to act now does not mean that it never will. Perhaps this latest overreach by the Obama administration will prove egregious enough to grab the Court’s attention, but only time will tell.

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