Case: 24-30399 Document: 90 Page: 1 Date Filed: 09/04/2024
`
`
`
`No. 24-30399
`__________________________________________________________________
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`__________________________________________________________________
`
`
`State of Louisiana, by and through its Attorney General, Elizabeth B. Murrill;
`Louisiana Department of Education; State of Mississippi, by and through its
`Attorney General, Lynn Fitch; State of Montana, by and through its Attorney
`General, Austin Knudsen; State of Idaho, by and through its Attorney General,
`Raul Labrador; School Board of Webster Parish; School Board of Red River
`Parish; School Board of Bossier Parish; School Board Sabine Parish; School Board
`of Grant Parish; School Board of West Carroll Parish; School Board of Caddo
`Parish; School Board of Natchitoches Parish; School Board of Caldwell Parish;
`School Board of Allen Parish; School Board LaSalle Parish; School Board
`Jefferson Davis Parish; School Board of Ouachita Parish; School Board of Franklin
`Parish; School Board of Acadia Parish; School Board of Desoto Parish; School
`Board of St. Tammany Parish; All Plaintiffs.,
`
`
`
` Plaintiffs-Appellees,
`
`
`v.
`
`United States Department of Education, Miguel Cardona, in his official capacity as
`Secretary of Education; Office for Civil Rights, United States Department of
`Education; Catherine Lhamon, in her official capacity as the Assistant Secretary
`for Civil Rights; United States Department of Justice; Merrick B. Garland, in his
`official capacity as the Attorney General of the United States; Kristen Clarke, in
`her official capacity as Assistant Attorney General for the Civil Rights Division of
`United States Department of Justice,
`
`
` Defendants-Appellants.
`
`
`
`
`
`
`
`
`
`School Board Rapides Parish,
`
` Plaintiff-Appellee,
`
`v.
`
`
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 2 Date Filed: 09/04/2024
`
`
`
`
`United States Department of Education, United States Department of Education;
`Miguel Cardona, in his official capacity as Secretary of Education; Catherine
`Lhamon, in her official capacity as the Assistant Secretary for Civil Rights; United
`States Department of Justice; Merrick B. Garland, in his official capacity as the
`Attorney General of the United States; Kristen Clarke, in her official capacity as
`Assistant Attorney General for the Civil Rights Division of United States
`Department of Justice,
`
` Defendants-Appellants.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`On Appeal from the United States District Court
`for the Western District of Louisiana, Monroe
`Honorable Terry A. Doughty, Chief Judge
`Civil Action Nos. 3:24-cv-00563-TAD-KDM, 1:24-cv-00567
`
`
`
`
`
`
`
`
`
`
`
`BRIEF OF AMICI CURIAE FIRST AMENDMENT SCHOLARS
`IN SUPPORT OF DEFENDANTS-APPELLANTS AND REVERSAL
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Jessica Ring Amunson
` Counsel of Record
`Sierra Paskins
`JENNER & BLOCK LLC
`1099 New York Avenue NW
`Suite 900
`Washington, DC 20001
`(202) 639-6000
`jamunson@jenner.com
`
`
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 3 Date Filed: 09/04/2024
`
`
`
`
`
`CERTIFICATE OF INTERESTED PERSONS
`The undersigned counsel of record certifies that amici curiae are unaware of
`
`any persons with any interest in the outcome of this litigation other than amici curiae
`
`represented in this brief and their counsel (listed below), and those identified in the
`
`party and amicus briefs filed, or to be filed, in this case. These representations are
`
`made in order that the judges of this Court may evaluate possible disqualification or
`
`recusal.
`
`Counsel for Amici Curiae
`Jessica Ring Amunson, Jenner & Block LLP
`Sierra Paskins, Jenner & Block LLP
`
`Amici Curiae
`Floyd Abrams, Yale Law School, Abrams Institute for Freedom of Expression
`Founder
`
`Vincent Blasi, Columbia Law School, Corliss Lamont Professor Emeritus of Civil
`Liberties
`
`Lee Bollinger, Columbia Law School, President Emeritus and Seth Low Professor
`of the University
`
`Erwin Chemerinsky, University of California Berkeley Law School, Dean & Jesse
`H. Choper Distinguished Professor of Law
`
`Genevieve Lakier, University of Chicago Law School, Herbert and Marjorie Fried
`Teaching Scholar
`
`Amanda Shanor, The Wharton School of the University of Pennsylvania, Assistant
`Professor of Legal Studies & Business Ethics and Wolpow Family Faculty Scholar
`
`Geoffrey Stone, University of Chicago Law School, Edward H. Levi Distinguished
`Service Professor of Law
`
`
`
`
`i
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 4 Date Filed: 09/04/2024
`
`
`
`Laura Weinrib, Harvard Law School, Fred N. Fishman Professor of Constitutional
`Law
`
`
`
`
`
`
`
`
`
`/s/ Jessica Ring Amunson
`Counsel of Record for Amici Curiae
`
`
`
`ii
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 5 Date Filed: 09/04/2024
`
`
`
`B.
`
`TABLE OF CONTENTS
`CERTIFICATE OF INTERESTED PERSONS ........................................................ i
`TABLE OF AUTHORITIES ................................................................................... iv
`IDENTITY AND STATEMENT OF INTEREST OF AMICI CURIAE .................. 1
`SUMMARY OF ARGUMENT ................................................................................ 1
`ARGUMENT ............................................................................................................ 2
`The Anti-Discrimination Standard Used In The Final Rule Has Long
`I.
`Been Treated As Regulating Conduct Or Merely
`Incidentally
`Regulating Speech For Constitutional Purposes ............................................. 2
`The “severe or pervasive” standard is an established standard that
`A.
`has repeatedly been upheld without raising First Amendment
`concerns ................................................................................................ 2
`Anti-discrimination and anti-harassment laws promote rather
`than violate the First Amendment’s values .......................................... 6
`Under Any Applicable Constitutional Standard, The Final Rule Raises
`No First Amendment Concern. ....................................................................... 7
`Prohibiting Discrimination And Harassment In Schools Does Not
`Compel Speech Just Because Some Do Not Want to Oblige ....................... 11
`CONCLUSION ....................................................................................................... 12
`ADDENDUM .......................................................................................................... 14
`
`
`
`II.
`
`III.
`
`
`
`
`
`
`
`iii
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 6 Date Filed: 09/04/2024
`
`
`
`TABLE OF AUTHORITIES
`
`CASES
`303 Creative LLC v. Elenis, 600 U.S. 570 (2023) .................................................... 9
`Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) ................................ 7
`Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) ...................................... 4
`Davis ex rel. LaShonda D. v. Monroe County Board of Education, 526
`U.S. 629 (1999) .................................................................................................... 5
`
`Equity in Athletics, Inc. v. Department of Education, 639 F.3d 91 (4th
`Cir. 2011) ........................................................................................................... 11
`Faragher v. City of Boca Raton, 524 U.S. 775 (1998) ............................................. 4
`Hamilton v. Alabama, 376 U.S. 650 (1964) ........................................................ 9, 12
`Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) ............................................. 3, 4
`Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston,
`515 U.S. 557 (1995) ............................................................................................. 6
`Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) .......................... 9
`Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S.
`47 (2006) ...................................................................................................... 10, 12
`Sypniewski v. Warren Hills Regional Board of Education, 307 F.3d 243
`(3d Cir. 2002) ....................................................................................................... 9
`Texas v. Johnson, 491 U.S. 397 (1989) ..................................................................... 8
`
`United States v. O’Brien, 391 U.S. 367 (1968) ....................................................... 10
`Zeno v. Pine Plains Central School District, 702 F.3d 655 (2d Cir.
`2012) ................................................................................................................ 4-5
`STATUTES
`42 U.S.C. § 12132 ..................................................................................................... 8
`29 U.S.C. § 701 et seq. .............................................................................................. 8
`
`
`
`iv
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 7 Date Filed: 09/04/2024
`
`
`
`FEDERAL REGULATIONS
`Nondiscrimination on the Basis of Sex in Education Programs or
`Activities Receiving Federal Financial Assistance, 89 Fed. Reg.
`33474 (Apr. 29, 2024) .......................................................................... 2, 5, 11, 12
`Racial Incidents and Harassment Against Students at Educational
`Institutions; Investigative Guidance, 59 Fed. Reg. 11448 (Mar. 10,
`1994) .................................................................................................................... 4
`
`Revised Sexual Harassment Guidance: Harassment of Students by
`School Employees, Other Students, or Third Parties, 66 Fed. Reg.
`5512-01 (Jan. 19, 2001) ....................................................................................... 5
`Office for Civil Rights; Sexual Harassment Guidance: Harassment of
`Students by School Employees, Other Students, or Third Parties, 62
`Fed. Reg. 12034 (Mar. 13, 1997) ......................................................................... 5
`OTHER AUTHORITIES
`Amanda Shanor & Sarah E. Light, Anti-Woke Capitalism, The First
`Amendment, and the Decline of Libertarianism, 118 Nw. U. L. Rev.
`347 (2023) ........................................................................................................ 6, 7
`Frederick Schauer, The Boundaries of the First Amendment: A
`Preliminary Exploration of Constitutional Salience, 117 Harv. L.
`Rev. 1765 (2004) .................................................................................................. 6
`
`Richard H. Fallon, Jr., Sexual Harassment, Content, Neutrality, and the
`First Amendment Dog that Didn’t Bark, 1994 Sup. Ct. Rev. 1 ......................... 44
`Reply Brief, Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) (No.
`92-1168), 1993 WL 632335 ................................................................................. 4
`Response Brief, Harris v. Forklift Systems, Inc, 510 U.S. 17 (1993)
`(No. 92-1168), 1993 WL 302223 ......................................................................... 4
`United States Department of Education, Questions and Answers on
`Title IX and Sexual Violence (Apr. 29, 2014) (Rescinded),
`https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-
`ix.pdf .................................................................................................................... 5
`
`
`
`v
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 8 Date Filed: 09/04/2024
`
`
`
`IDENTITY AND STATEMENT OF INTEREST OF AMICI CURIAE1
`Amici are scholars of the First Amendment who have taught courses in,
`
`published articles and books on, and dedicated significant attention to the study of
`
`the topic. Amici curiae have an interest in promoting the sound interpretation of the
`
`First Amendment in a way that does not dilute the protections for freedom of speech,
`
`and that is in harmony with its purpose, precedent, and the societal values that are
`
`served by the protection of free expression. Amici’s names and professional
`
`affiliations are set forth in the Addendum attached to this brief.
`
`SUMMARY OF ARGUMENT
`Government prohibitions against discrimination and harassment have long
`
`
`
`existed in harmony with the First Amendment. Indeed, such prohibitions promote
`
`rather than inhibit the values of participatory autonomy that the First Amendment
`
`protects. Recognizing that the very same government protections against severe or
`
`pervasive discrimination and harassment that have been successfully applied in
`
`myriad contexts for decades also apply to transgender people does not change the
`
`constitutional analysis under the First Amendment, and the district court was wrong
`
`to hold that it did.
`
`
`1 All parties have consented to the filing of this brief. No party’s counsel authored
`this brief in whole or in part and no person—other than the amici and their
`counsel—contributed money that was intended to fund preparing or submitting this
`brief.
`
`
`
`1
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 9 Date Filed: 09/04/2024
`
`
`
`
`
`Equally misguided was the district court’s holding on compelled speech.
`
`Prohibitions against discrimination and harassment target conduct, not speech. But
`
`even assuming the prohibitions have incidental effects on speech, the government’s
`
`interest in ensuring all individuals can participate in and benefit from educational
`
`programs or activities is sufficiently important to justify any such effects.
`
`ARGUMENT
`The Anti-Discrimination Standard Used In The Final Rule Has Long
`Been Treated As Regulating Conduct Or Merely Incidentally Regulating
`Speech For Constitutional Purposes.
`The Final Rule’s “severe or pervasive” standard for sex-based harassment
`
`I.
`
`
`
`and hostility aligns with the definition used by the Equal Employment Opportunity
`
`Commission under Title VII and the Department of Education under Title VI.
`
`Nondiscrimination on the Basis of Sex in Education Programs or Activities
`
`Receiving Federal Financial Assistance, 89 Fed. Reg. 33474, 33503 (Apr. 29, 2024)
`
`(“Final Rule”). Courts have never interpreted this standard to violate the First
`
`Amendment, and there is no reason that extending this standard to cover
`
`transgender people under Title IX should trigger First Amendment concerns.
`
`A. The “severe or pervasive” standard is an established standard that
`has repeatedly been upheld without raising First Amendment
`concerns.
`The district court said that it could not “overlook” the different “implications”
`
`between the Final Rule’s anti-discrimination standard and Title VII’s anti-
`
`discrimination standard, because “[w]hile Title VII is vastly important . . ., the Court
`
`
`
`2
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 10 Date Filed: 09/04/2024
`
`
`
`cannot simply apply the same standard to federally funded educational institutions.”
`
`ROA.2370. But for decades, agencies and courts have defined an unlawful hostile
`
`environment as one in which discrimination or harassment is “severe or pervasive”
`
`without raising any First Amendment concerns. The Final Rule does not change that
`
`standard.
`
`
`
`In the employment context, Title VII of the Civil Rights Act has long
`
`protected employees against a hostile work environment. More than three decades
`
`ago, when an employee sued her employer alleging that the employer had created a
`
`sexually hostile work environment by subjecting her to numerous offensive remarks
`
`and unwanted sexual innuendos, a unanimous Supreme Court held that “[w]hen the
`
`workplace is permeated with discriminatory intimidation, ridicule, and insult, that is
`
`sufficiently severe or pervasive to alter the conditions of the victim’s employment
`
`and create an abusive working environment, Title VII is violated.” Harris v. Forklift
`
`Sys., Inc., 510 U.S. 17, 21 (1993) (emphasis added) (citation and internal quotation
`
`marks omitted). Justice Scalia concurred, saying that he knew “of no test more
`
`faithful to the inherently vague statutory language than the one the Court today
`
`adopts.” Id. at 25 (Scalia, J., concurring).
`
`
`
`In that same case, the parties argued over whether the First Amendment was
`
`violated by the application of Title VII to allegations that “speech”—in the form of
`
`offensive remarks and unwanted sexual innuendos—could create a hostile work
`
`
`
`3
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 11 Date Filed: 09/04/2024
`
`
`
`environment. Compare Resp. Br. at *31-33, Harris, 510 U.S. 17 (1993) (No. 92-
`
`1168), 1993 WL 302223, with Reply Br. at *10-11, Harris, 510 U.S. 17 (1993) (No.
`
`92-1168), 1993 WL 632335. Without any reference to those concerns, the Supreme
`
`Court unanimously agreed that when harassment is “sufficiently severe or
`
`pervasive” to create a hostile work environment, it is unlawful under Title VII.
`
`Harris, 510 U.S. at 21; see also Richard H. Fallon, Jr., Sexual Harassment, Content,
`
`Neutrality, and the First Amendment Dog that Didn’t Bark, 1994 Sup. Ct. Rev. 1, 9-
`
`10. Since that time, the Court has repeatedly applied that same standard without
`
`questioning its constitutionality. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
`
`752-54, 757 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 780, 786-88
`
`(1998).
`
`
`
`In the context of prohibiting racial discrimination pursuant to Title VI of the
`
`Civil Rights Act, the same standard applies. Again, more than thirty years ago, the
`
`Department of Education promulgated a “severe, pervasive” standard for racial
`
`discrimination in schools to protect every student’s ability to participate in or benefit
`
`from an educational program or activity. Racial Incidents and Harassment Against
`
`Students at Educational Institutions; Investigative Guidance, 59 Fed. Reg. 11448,
`
`11449 (Mar. 10, 1994). Without raising any First Amendment concerns, courts
`
`repeatedly have relied on that standard to recognize schools’ “longstanding legal
`
`duty” to eliminate harassment under the anti-discrimination laws. See, e.g., Zeno v.
`
`
`
`4
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 12 Date Filed: 09/04/2024
`
`
`
`Pine Plains Cent. Sch. Dist., 702 F.3d 655, 670 n.14 (2d Cir. 2012) (holding that
`
`student suffered from severe, pervasive, and objectively offensive racial harassment
`
`when his peers made frequent pejorative references to his skin tone and repeatedly
`
`called him racial epithets). Nor is this anti-discrimination standard novel even in the
`
`Title IX context to prohibit sexual harassment in schools. The Department of
`
`Education stated in its 1997 guidance—memorializing its “longstanding … policy
`
`and practice”—that “sexual harassment must be sufficiently severe, persistent, or
`
`pervasive that it adversely affects a student’s education or creates a hostile or abusive
`
`educational environment.” Office for Civil Rights; Sexual Harassment Guidance:
`
`Harassment of Students by School Employees, Other Students, or Third Parties, 62
`
`Fed. Reg. 12034, 12034-35, 12045 (Mar. 13, 1997) (emphasis added).2
`
`
`2 In Davis ex rel. LaShonda D. v. Monroe County Board of Education, 526 U.S. 629
`(1999), the Supreme Court limited recovery in private lawsuits seeking money
`damages to sexual harassment that is “so severe, pervasive, and objectively
`offensive that it effectively bars the victim’s access to an educational opportunity
`or benefit.” Id. at 633 (emphasis added). Davis did not alter the standard applicable
`to administrative enforcement by the Department of Education, let alone establish
`it as a constitutional standard. And for two decades after Davis was decided, the
`Department continued to apply the “severe or pervasive” standard. Compare
`Revised Sexual Harassment Guidance: Harassment of Students by School
`Employees, Other Students, or Third Parties, 66 Fed. Reg. 5512-01 (Jan. 19, 2001),
`with U.S. Dep’t of Educ., Questions and Answers on Title IX and Sexual Violence
`(Apr. 29, 2014) (Rescinded), https://www2.ed.gov/about/offices/list/ocr/docs/qa-
`201404-title-ix.pdf. In 2020, the Department briefly adopted the Davis standard,
`but the Final Rule restores the Department’s longstanding interpretation for
`enforcement. 89 Fed. Reg. at 33500.
`
`
`
`5
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 13 Date Filed: 09/04/2024
`
`
`
`B. Anti-discrimination and anti-harassment laws promote rather than
`violate the First Amendment’s values.
`Anti-discrimination protections stem from a “venerable history” and “are well
`
`within the State’s usual power to enact when a legislature has reason to believe that
`
`a given group is the target of discrimination, and they do not, as a general matter,
`
`violate the First . . . Amendment[].” Hurley v. Irish-Am. Gay, Lesbian & Bisexual
`
`Grp. of Boston, 515 U.S. 557, 571-72 (1995). Just as “[s]ecurities violations,
`
`antitrust violations, criminal solicitation, and many other categories of ‘speech’
`
`remain uncovered by the First Amendment,” so, too, is severe or pervasive
`
`harassment. Frederick Schauer, The Boundaries of the First Amendment: A
`
`Preliminary Exploration of Constitutional Salience, 117 Harv. L. Rev. 1765, 1771
`
`(2004). To read the First Amendment to bar anti-discrimination measures here
`
`would extend the reach of the Constitution where the Supreme Court has not. After
`
`all, “[i]f a generally applicable law regulates conduct regardless of what it
`
`communicates, even if the law incidentally restricts or compels expression, the Court
`
`typically extends only a relaxed form of scrutiny or even no First Amendment
`
`coverage at all.” Amanda Shanor & Sarah E. Light, Anti-Woke Capitalism, The First
`
`Amendment, and the Decline of Libertarianism, 118 Nw. U. L. Rev. 347, 405 (2023).
`
`
`
`Indeed, anti-discrimination protections, such as the Final Rule, should not be
`
`read as limited by, but instead as furthering the First Amendment’s values. That is
`
`because the principles that undergird the First Amendment protect “decisional and
`
`
`
`6
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 14 Date Filed: 09/04/2024
`
`
`
`participatory” autonomy, especially when the speech at issue is not a common
`
`“medium of expression in public discourse.” Id. at 420-22. Teachers and students
`
`alike expect that they should be treated in a manner free from discrimination and
`
`harassment in the classroom. Protections against harassment ensure that all
`
`individuals can benefit from their educational experiences, which is “the very
`
`foundation of good citizenship.” Brown v. Bd. of Educ. of Topeka, 347 U.S. 483,
`
`493 (1954).
`
`II. Under Any Applicable Constitutional Standard, The Final Rule Raises
`No First Amendment Concern.
`Because the Final Rule targets the conduct of limiting other students’
`
`
`
`opportunity to learn, it either regulates non-expressive conduct, regulates speech
`
`incidental to that conduct, or regulates speech but is so narrowly tailored to achieve
`
`a compelling purpose that even strict scrutiny would not bar it.
`
`
`
`Not all speech that expresses an idea is covered by the First Amendment. One
`
`cannot raise a plausible First Amendment claim against being compelled to speak in
`
`court, express a view in contractual obligations, or file taxes, for example. Similarly,
`
`it has likewise long been of little moment that hate speech is strongly protected in
`
`the public sphere, while the same utterances are prohibited in other contexts by Titles
`
`
`
`7
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 15 Date Filed: 09/04/2024
`
`
`
`VI, VII, and IX, as well as Title II of the Americans with Disabilities Act3 and
`
`Section 504 of the Rehabilitation Act.4
`
`Publicly expressing that one is opposed to sexual-orientation diversity or
`
`gender-based anti-discrimination policies, such as in an op-ed in the school
`
`newspaper, is fully protected—and could not constitutionally be banned because
`
`“the government may not prohibit the expression of an idea simply because society
`
`finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414
`
`(1989) (collecting cases). That includes expressing the belief that there are only two
`
`genders, that transwomen or transmen are not “real” men or women, or that the
`
`appropriate place for women is in the home. However, the government can prohibit
`
`an individual from acting on such beliefs to prevent another from accessing
`
`education, for example by consistently and intentionally addressing a classmate or
`
`student with epithets. Here, the Final Rule does not prohibit anyone from publicly
`
`expressing their beliefs, except in limited contexts where the expression of one’s
`
`beliefs actually limits students’ opportunity to learn.
`
`
`
`It is true that the Rule clarifies that this long-established anti-discrimination
`
`standard applies equally to conduct directed at transgender people on the basis of
`
`their sex. But the recognition that anti-discrimination rights apply to additional
`
`
`
`3 42 U.S.C. § 12132.
`4 29 U.S.C. § 701 et seq.
`
`
`
`8
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 16 Date Filed: 09/04/2024
`
`
`
`groups, even when it causes discomfort or objections that are deeply held, does not
`
`alter the relationship between the anti-discrimination laws and the First Amendment.
`
`There is nothing about harassing a transgender person in an educational environment
`
`that is inherently less obstructive to a classmate’s ability to learn than other forms of
`
`speech that may descend to abuse. Cf. Sypniewski v. Warren Hills Reg’l Bd. of
`
`Educ., 307 F.3d 243, 264, 268-69 (3d Cir. 2002) (holding that application of a
`
`school’s racial harassment policy against several white students wearing black face
`
`and waving confederate flags to threaten other black students was appropriate as
`
`those actions created a “well-founded fear of disruption”); 303 Creative LLC v.
`
`Elenis, 600 U.S. 570, 591 (2023).
`
`
`
`The Final Rule simply prohibits an individual from engaging in the conduct
`
`of intentional and consistent discrimination against an individual’s sex-based
`
`identity in an educational setting, which, like other anti-discrimination laws, is fully
`
`consistent with the First Amendment. See Oncale v. Sundowner Offshore Servs.,
`
`Inc., 523 U.S. 75, 78-82 (1998) (extending Title VII protection against
`
`discrimination to victims of same-sex harassment without mentioning the First
`
`Amendment). And the Supreme Court has already recognized that certain forms of
`
`offensive address can implicate core equality guarantees, overriding any speech
`
`interest in refusing to refer to someone with the honorifics they prefer. See Hamilton
`
`v. Alabama, 376 U.S. 650, 650 (1964) (reversing without expressing any
`
`
`
`9
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 17 Date Filed: 09/04/2024
`
`
`
`constitutionally relevant concern for affected speech or association because there
`
`was simply no right to discriminate by refusing to use preferred form of address).5
`
`
`
`Even if the Final Rule could be read as regulating speech, its effect is
`
`incidental. Regulation of conduct that incidentally limits speech occurs in a variety
`
`of other circumstances that are not unconstitutional, like a prohibition on “White
`
`Applicants Only” signs is incidental to a law prohibiting hiring on the basis of race.
`
`Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 62 (2006) (“FAIR”).
`
`That is because when regulation is unrelated to the suppression of expression, it
`
`satisfies the First Amendment if it furthers “a substantial government interest that
`
`would be achieved less effectively absent the regulation.” Id. at 67 (citation and
`
`internal quotation marks omitted). Indeed, “when ‘speech’ and ‘nonspeech’
`
`elements are combined in the same course of conduct, a sufficiently important
`
`governmental interest in regulating the nonspeech element can justify incidental
`
`limitations on First Amendment freedoms.” United States v. O’Brien, 391 U.S. 367,
`
`376 (1968).
`
`Here, there is such an interest, and the Final Rule is appropriately tailored to
`
`achieve it. The Final Rule, like its Title VI and VII counterparts, contains a standard
`
`
`5 First Amendment protection does not depend on whether the speech touches on a
`constitutionally suspect characteristic such as race or sex, and it would threaten free
`speech if it did.
`
`
`
`10
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 18 Date Filed: 09/04/2024
`
`
`
`that only prohibits unwelcome sex-based conduct that is so “severe or pervasive”
`
`that it actually prevents an individual from equally participating in an educational
`
`program or activity.6 Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91, 101-
`
`03 (4th Cir. 2011) (reasoning that equal participation in educational settings is a
`
`relevant consideration of Title IX’s application).
`
`III. Prohibiting Discrimination And Harassment In Schools Does Not Compel
`Speech Just Because Some Do Not Want To Oblige.
`The district court held that the Final Rule likely compels speech “because it
`
`would compel staff and students to use whatever pronouns a person demands, even
`
`when those are contrary to grammar rules, reality, or political ideologies, and it
`
`further prohibits staff and students from expressing their own views on certain
`
`topics.” ROA.2369. In the district court’s view, the Final Rule “allows for one
`
`political ideology to dominate the educational landscape while either silencing the
`
`other or calling the other ‘harassment’ under these standards.” ROA.2369. Not so.
`
`The foregoing analysis applies regardless of whether the Rule is characterized
`
`as incidentally restricting or compelling speech (or silence).7 A requirement to file
`
`
`6 Whether speech does have that effect will, by necessity, depend on the context.
`But, as the Department of Education recognized, the expression must have “an
`impact far greater than being bothersome or merely offensive.” See 89 Fed. Reg.
`at 33494-95; see also id. at 33516.
`7 To the extent that religious objections exist against the Final Rule’s anti-
`discrimination standard, that disagreement must be raised, if at all, in a Free
`Exercise Clause claim, not a Free Speech claim.
`
`
`
`11
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 19 Date Filed: 09/04/2024
`
`
`
`a tax return or respond to a discovery request is no less constitutional because it
`
`incidentally requires rather than restricts speech. This is why the Court in FAIR
`
`analyzed the requirement that schools send emails and post notices advertising
`
`military recruiters—which the schools argued unconstitutionally compelled
`
`speech—as identical to a requirement that an employer “take down a sign reading
`
`‘White Applicants Only.’” 547 U.S. at 62. Either result, the Court explained,
`
`“hardly means that the law should be analyzed as one regulating the [challenger]’s
`
`speech rather than conduct.” Id.
`
`As in FAIR, the Final Rule “does not dictate the content of the speech at all,
`
`which is only ‘compelled’ if, and to the extent,” id., a speaker decides to address
`
`students in certain ways, cf. Hamilton, 376 U.S. at 650. To the extent the Final Rule
`
`compels speech at all, it does so incidental to its ban on conduct that prevents an
`
`individual from equally accessing education. In so doing, the Final Rule is
`
`appropriately tailored to advance the Department’s “‘compelling interest in
`
`eradicating discrimination’ on the basis of sex.” 89 Fed. Reg. at 33503 (quoting
`
`Roberts v. U.S. Jaycees, 468 U.S. 609, 623-24 (1984)). The Final Rule should be
`
`upheld.
`
`CONCLUSION
`Amici urge the Court to vacate the district court’s preliminary injunction.
`
`12
`
`
`
`
`
`
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 20 Date Filed: 09/04/2024
`
`
`
`Date: September 4, 2024
`
`
`
` Respectfully submitted,
`
`
`
`
`
`
`
`
`
`
` /s/ Jessica Ring Amunson
`Jessica Ring Amunson
` Counsel of Record
`Sierra Paskins
`JENNER & BLOCK LLC
`1099 New York Avenue NW
`Washington, DC 20001
`(202) 639-6000
`jamunson@jenner.com
`
`
`
`
`
`
`13
`
`
`
`

`

`Case: 24-30399 Document: 90 Page: 21 Date Filed: 09/04/2024
`
`
`
`ADDENDUM
`
`Amici curiae are as follows:
`
`Floyd Abrams, Yale Law School, Abrams Institute for Freedom of Expression
`Founder
`
`Vincent Blasi, Columbia Law School, Corliss Lamont Professor Emeritus of Civil
`Liberties
`
`Lee Bollinger, Columbia La