Utah’s Title IX fight belongs in the courts, not the Legislature

The Capitol in Salt Lake City is pictured on Monday, May 6, 2024. (Photo by Spenser Heaps for Utah News Dispatch)

Earlier this year, the Utah Legislature passed SB57, establishing the Utah Constitutional Sovereignty Act. The law, which was signed by Utah Gov. Spencer Cox, allows the Legislature, with the concurring signature of the governor, to forbid state officers from enforcing federal laws, regulations, orders, or other directives that state lawmakers determine violate “principles of state sovereignty.” 

First of its kind, this new Act was described as a “framework” that could be employed in the future to push back against various kinds of “federal overreach.”

Last month, the Legislature passed a concurrent resolution, signed by Cox, prohibiting state officials from enforcing a new federal rule concerning Title IX. This new rule expanded Title IX to comport with a Supreme Court decision expanding the legal term “sex discrimination” to include discrimination based on sexual orientation and gender identity. 

This application of the Utah Constitutional Sovereignty Act violates both the Tenth Amendment and Supremacy Clause of the United States Constitution. The Tenth Amendment states that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 

Many broad and bold claims are ascribed to the Tenth Amendment and the powers that make up so-called “states rights,” and though some recent efforts have been made to expand the Tenth Amendment’s reach, even the  Supreme Court once admitted it “added nothing to the [Constitution] as originally ratified.” 

Despite this, state lawmakers are attempting to hang their hat on a series of Supreme Court cases starting in the 1990s that created the “Anti-Commandeering Doctrine.” This doctrine says the federal government cannot command state government and officers to take action or enforce federal laws and regulations. Importantly — and as any good lawyer would tell you — the application of the doctrine depends on the circumstances, and the few Supreme Court decisions issued on the Anti-Commandeering Doctrine have set limits on its use. 

First, Congress can persuade states to enforce federal laws and regulations through its spending power. In other words, Congress can place conditions on federal funds given to states that they must accept and carry out to receive those funds.

For example, all schools that receive federal financial assistance must comply with Title IX. Of course, this means that state officers can refuse to enforce federal laws and regulations. However, the federal government still has the upper hand and can pull federal funding if the state refuses to comply.

Second, Congress is not commandeering states when laws evenhandedly regulate both public and private actors. For example, Title IX generally applies to any educational institution, both private and public, that receives federal financial assistance. 

Utah lawmakers are assuming the state government is acting in its sovereign capacity in regulating education, but in higher education they are acting in a sphere where private actors can engage, thus they are also acting as a private party. In this case, the state and its officers are obligated to enforce federal regulations because the Tenth Amendment and its Anti-Commandeering Doctrine do not apply.

Finally, Congress can preempt state law by exercising its constitutional legislative powers. Article VI of the U.S. Constitution states, “This Constitution, and the Laws of the United States that shall be made in Pursuance thereof […] shall be the supreme Law of the Land.” 

Title IX is part of the Civil Rights Act of 1964, passed under Congress’s authority granted by the Fourteenth Amendment, and further expanded by rulemaking authority given to the Administration by Congress. While it may be argued that this is not a reasonable interpretation of the law after the Supreme Court recently overturned the Chevron doctrine, civil rights has generally been an area where Congressional laws trump contradicting state laws, and thus would also preempt Utah’s laws in this area as well.

Even absent constitutional authority, state lawmakers and the governor do not have the power to unilaterally declare that laws or regulations are unconstitutional. This power has always rested with the federal court system. 

As we have seen, other district courts have already placed stays on the enforcement of this Title IX rule in other states, and Utah’s Attorney General is part of a suit seeking a similar ruling. This is the proper way to solve disputes under the Constitution. 

To invoke the Utah Constitutional Sovereignty Act is to only bring additional litigation that costs taxpayers more in lawyers fees and threatens billions in federal dollars that help support our schools and children. 

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