Case: 24-30399 Document: 95 Page: 1 Date Filed: 09/04/2024
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`No. 24-30399
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`
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
`
`STATE OF LOUISIANA, et al.,
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`
`
`Plaintiffs-Appellees,
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`
`
`
`
`
`
`v.
`UNITED STATES DEPARTMENT OF EDUCATION, et al.,
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`
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`Defendants-Appellants.
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`
`
`On Appeal from the United States District Court
`for the Western District of Louisiana
`Case Nos. 3:24-cv-563 and 3:24-cv-567
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`
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`BRIEF OF ORGANIZATIONS SERVING PREGNANT AND
`PARENTING STUDENTS AS AMICI CURIAE
`SUPPORTING APPELLANTS
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`
`
`Jim Davy
`ALL RISE TRIAL & APPELLATE
`P.O. Box 15216
`Philadelphia, PA 19125
`(215) 792-3579
`jimdavy@allriselaw.org
`
`
`
`
`
`
`
`Matthew Borden
`Tabitha Cohen
`Kory DeClark
`BRAUNHAGEY & BORDEN, LLP
`747 Front Street
`San Francisco, CA 94111
`(415) 599-0210
`borden@braunhagey.com
`cohen@braunhagey.com
`declark@braunhagey.com
`
`Counsel for Amici Curiae
`
`September 4, 2024
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`Case: 24-30399 Document: 95 Page: 2 Date Filed: 09/04/2024
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`CORPORATE DISCLOSURE STATEMENT
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`Amici are nonprofit organizations. They have no parent corporations,
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`and no publicly held corporation owns any portion of any of them.
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`i
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`Case: 24-30399 Document: 95 Page: 3 Date Filed: 09/04/2024
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`TABLE OF CONTENTS
`Table of Authorities .................................................................................. iii
`Introduction ............................................................................................... 3
`Argument ................................................................................................... 6
`I. The Rule is essential to ensure that pregnant and
`postpartum students can access education. ....................................... 6
`II. The Rule protects the health of students and their
`pregnancies. ...................................................................................... 10
`III. The portions of the Rule protecting pregnant and
`postpartum students should go into effect because they are
`unchallenged and severable. ............................................................ 14
`Conclusion ............................................................................................... 22
`Certificates .............................................................................................. 1a
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`ii
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`Case: 24-30399 Document: 95 Page: 4 Date Filed: 09/04/2024
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`TABLE OF AUTHORITIES
`
` Page(s)
`Cases
`Am. Fuel & Petrochemical Manufacturers v. Env’t Prot. Agency,
`3 F.4th 373 (D.C. Cir. 2021) ................................................................ 16
`Canal Auth. v. Callaway,
` 489 F.2d 567 (5th Cir. 1974) ................................................................ 15
`Davis Cnty. Solid Waste Mgmt. v. E.P.A.,
`108 F.3d 1454 (D.C. Cir. 1997) ........................................................15, 16
`Department of Educ. v. Louisiana,
`--- S. Ct. ----, 2024 WL 3841071 (U.S. Aug. 16, 2024) ............. 17, 19, 21
`E.T. v. Paxton,
`19 F.4th 760 (5th Cir. 2021) .................................................... 15, 21, 22
`K Mart Corp. v. Cartier, Inc.,
`486 U.S. 281 (1988) .............................................................................. 15
`Louisiana v. United States Dep't of Educ.,
`No. 3:24-cv-00563, 2024 WL 3452887 (W.D. La. June 13, 2024) ........ 16
`Nichols v. Alcatel USA, Inc.,
`532 F.3d 365 (5th Cir. 2008) ................................................................ 21
`Peifer v. Commonwealth of Pa. Bd. of Probation & Parole,
`106 F.4th 270 (3d Cir. 2024) .................................................................. 7
`Telephone & Data Sys. v. FCC,
`19 F.3d 42 (D.C. Cir. 1994) ............................................................ 16, 21
`
`Statutes
`20 U.S.C. § 1681 ........................................................................................ 3
`20 U.S.C. § 1681(a) .................................................................................... 4
`
`Regulations
`34 C.F.R. § 106.10 ............................................................................. 16, 17
`34 C.F.R. § 106.21 ................................................................................... 17
`34 C.F.R. § 106.40 ........................................................... 4, 5, 8, 15, 17, 22
`34 C.F.R. § 106.40(a) ............................................................................... 17
`34 C.F.R. § 106.40(b) ........................................................................... 3, 17
`34 C.F.R. § 106.40(b)(2) ............................................................. 5, 8, 13, 17
`34 C.F.R. § 106.40(b)(3) ........................................................................... 18
`34 C.F.R. § 106.40(b)(3)(i) ............................................................... 5, 8, 13
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`iii
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`Case: 24-30399 Document: 95 Page: 5 Date Filed: 09/04/2024
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`TABLE OF AUTHORITIES—continued
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`Page(s)
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`34 C.F.R. § 106.40(b)(3)(ii) .......................................... 4, 6, 7, 8, 10, 11, 12
`34 C.F.R. § 106.40(b)(4) ..................................................................... 18, 19
`34 C.F.R. § 106.40(b)(5) ................................................................. 9, 10, 19
`45 C.F.R. § 86.40(b) (1975) .................................................................. 3, 13
`Nondiscrimination on the Basis of Sex in Education Programs or
`Activities Receiving Federal Financial Assistance,
`89 Fed. Reg. 33,474 (Apr. 29, 2024) ........................................... 4, 15, 16
`
`Other Authorities
`Andrew Sum et al., The Consequences of Dropping Out of High School
`(Oct. 2009) ............................................................................................ 10
`Choosing Wisely Recommendation #307, Am. Acad. of Fam. Physicians
` .............................................................................................................. 14
`Cynthia Costello, Inst. for Women’s Pol’y Rsch., Pathways to
`Postsecondary Education for Pregnant and Parenting Teens (May
`2014) ....................................................................................................... 9
`Dep’t of Health & Hum. Res., The Business Case for Breastfeeding
`(2008) ...................................................................................................... 8
`Ensuring Healthy Births Through Prenatal Support, Ctr. Am. Progress
`(Jan. 31, 2020) ...................................................................................... 11
`Lindsey Rechlin Cruse et al., Inst. for Women’s Pol’y Research,
`Investing in Single Mothers’ Higher Education (Dec. 2019) ............... 10
`Louisville Dep’t of Pub. Health and Wellness, Pregnant Workers Health
`Impact Assessment (2019) .................................................................... 11
`Paid Parental Leave, Statement of Policy, Am. Coll. of Obstetricians and
`Gynecologists (July 2016) .................................................................... 13
`Postpartum, Cleveland Clinic (Feb. 27, 2024) ........................................ 13
`Rebecca A. Krukowski et al., Correlates of Early Prenatal Care Access
`Among U.S. Women: Data from the Pregnancy Risk Assessment
`Monitoring System (PRAMS), 26 Maternal and Child Health J. 328
`(2022) .................................................................................................... 12
`Recommendation and Benefits, Ctrs. for Disease Control and Prevention
`(Mar. 17, 2023) ....................................................................................... 7
`
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`INTERESTS OF THE AMICI CURIAE
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`Amici Justice + Joy National Collaborative, Mommies in the D,
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`Generation Hope, the U.S. Breastfeeding Committee, and the National
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`Nurse-Led Care Consortium are organizations that support pregnant
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`and parenting students in school to ensure no student must face an
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`impossible choice between their education and their family.
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`Justice + Joy National Collaborative (formerly the “National
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`Crittenton Foundation”) is a national nonprofit organization that
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`supports the wellbeing of girls and young women, including pregnant and
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`parenting youth. It regularly convenes direct service providers from
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`thirty states, who provide support to pregnant and parenting teens on
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`the margins, many of whom have survived abuse, violence or neglect.
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`Mommies in the D is a Michigan nonprofit organization dedicated to
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`empowering young mothers, aged fourteen to twenty-two, by establishing
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`nurturing and growth-centered environments. By educating young
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`mothers on the importance of prenatal visits, developmental stages of
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`children, and breastfeeding support, they aim to support young mothers
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`in their social, economic, and emotional development so they can achieve
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`their personal and parenting goals.
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`Generation Hope is a national nonprofit whose mission is to ensure
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`all student parents have the opportunity to succeed, experience economic
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`mobility, and build wealth. It provides wrap-around services to young
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`parents and their children, including mentoring, tuition assistance,
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`tutoring, career preparation, and mental health support.
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`The U.S. Breastfeeding Committee (“USBC”) is a national non-
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`profit coalition bringing together 140 organizations that support the
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`USBC mission to create a landscape of breastfeeding support across the
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`United States. USBC is committed to ensuring that all families in the
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`U.S.—including postpartum students—have the support and resources
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`they need to achieve their breastfeeding goals in the communities where
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`they live, learn, and work.
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`The National Nurse-Led Care Consortium (“NNCC”) is a
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`national nonprofit whose mission is to advance nurse-led healthcare
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`through policy and programming to reduce health disparities and meet
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`primary care and wellness needs, including those of pregnant,
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`postpartum, and parenting students. NNCC has a longstanding
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`relationship with community-based organizations empowering young
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`people and students in their parenting journeys, particularly in support
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`of their ongoing educational needs. Public health nursing services
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`provided by NNCC facilitate access to medical care, developmental
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`support services, breastfeeding support, and peer support groups for
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`parents and parents-to-be, including many students.
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`The U.S. Department of Education’s new regulations strengthen and
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`clarify the law’s protections for pregnant and postpartum students.
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`Accordingly, amici have an interest in the new pregnancy-related
`
`provisions going into effect: If the district courts’ injunctions stand
`
`unmodified, the pregnant and postpartum students amici serve will
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`suffer grave disruptions to their educations.
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`Consistent with Federal Rule of Appellate Procedure 29(a)(4)(E),
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`amici’s counsel authored this brief, no party’s counsel authored the brief
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`in whole or in part, and no party beyond amici contributed any money
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`toward the brief. All parties have consented to the filing of the brief of
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`amici curiae.
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`INTRODUCTION
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`Since 1975, the federal agencies that Congress tasked with enforcing
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`Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.,
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`have promulgated regulations protecting pregnant and postpartum
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`students’ educations. See, e.g., 34 C.F.R. § 106.40(b) (2000); 45 C.F.R.
`
`§ 86.40(b) (1975). Among other provisions, these regulations included a
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`blanket prohibition on discrimination “on the basis of [a] student’s
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`pregnancy” and related conditions, 34 C.F.R. § 106.40(b)(1) (2000), and
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`required schools to permit pregnant and postpartum students medically
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`necessary leaves of absence, id. § 106.40(b)(5). Notably, given the current
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`dispute, the U.S. Department of Education promulgated and enforced
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`these regulations in the absence of any regulatory definition of the words
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`“on the basis of sex,” as used in Title IX’s statutory text. See 20 U.S.C.
`
`§ 1681(a).
`
`Despite these long-standing regulations, pregnant and parenting
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`students continue to face discrimination. Some schools, for example, deny
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`pregnant students basic accommodations that ensure they can pursue
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`their studies without risking their and their pregnancies’ health, evict
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`them from university housing, or exclude them from classes postpartum.
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`Among other provisions, the U.S. Department of Education’s broad-
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`ranging new Title IX regulations (“the Rule”) clarify and strengthen the
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`protections for pregnant and postpartum students that prior iterations of
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`the regulations set forth. Nondiscrimination on the Basis of Sex in
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`Education Programs or Activities Receiving Federal Financial Assistance,
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`89 Fed. Reg. 33,474 (Apr. 29, 2024) (codified at 34 C.F.R. § 106.40). For
`
`example, the Rule adds the following three key new provisions to
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`strengthen Title IX’s core prohibition on pregnancy discrimination:
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`● Schools must offer pregnant and postpartum students
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`“reasonable modifications,” such as larger desks, permission
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`to use the restroom, and excused absences for prenatal care,
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`id. at 33,887 (codified at 34 C.F.R. § 106.40(b)(3)(ii));
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`● Schools must provide lactation spaces and breaks to express
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`milk, id. at 33,887–88 (codified at 34 C.F.R. §§ 106.40(b)(3)(ii),
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`(v)); and
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`● Schools must notify pregnant students of their rights to
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`modifications, leaves of absence, lactation space, and more, id.
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`at 33,887 (codified at 34 C.F.R. §§ 106.40(b)(2), (b)(3)(i)).
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`Each of these provisions offers new protections not contained in the
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`current regulations, which do not expressly require schools to offer
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`reasonable modifications, do not even mention lactation spaces, and do
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`not provide for affirmative notice to students of their pregnancy-related
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`rights. See 34 C.F.R. § 106.40 (2000).
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`Plaintiffs-Appellees did not challenge the portions of the Rule related
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`to pregnant and postpartum students, did not claim to be injured by
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`them, and made no arguments about them. In seeking to enjoin the entire
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`Rule, they merely argued that provisions of the Rule defining “sex
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`discrimination” pervaded the entire rule. The district court accepted that
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`argument. But prior iterations of 34 C.F.R. § 106.40 protecting pregnant
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`and postpartum students from discrimination have never before been
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`dependent on or related to a definition of discrimination “on the basis of
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`sex”—because there has never before been one. The same should be true
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`now. As amici explain, the pregnancy- and postpartum-related provisions
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`are both vitally important and severable from the provisions that
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`Plaintiffs-Appellees dispute. This Court should either vacate the
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`preliminary injunction or narrow it so those unchallenged portions of the
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`Rule, as codified in 34 C.F.R. § 106.40, may go into effect as soon as
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`possible.
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`I.
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`ARGUMENT
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`The Rule is essential to ensure that pregnant and
`postpartum students can access education.
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`The Rule’s pregnancy provisions are essential to ensure pregnant and
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`postpartum students can learn and thrive at school. All three key new
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`protections protect these students’ access to education. And in so doing,
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`the Rule also reduces costs to the public.
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`1. Reasonable accommodations. If this Court allows it to go into effect,
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`the Rule will protect pregnant and postpartum students by requiring
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`schools to provide them reasonable accommodations (or “modifications”)
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`necessary to pursue their educations. 34 C.F.R. § 106.40(b)(3)(ii).
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`“Reasonable modifications may include, but are not limited to . . . breaks
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`during class to . . . eat[], drink[], or use[] the restroom; intermittent
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`absences to attend medical appointments; . . . rescheduling of tests and
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`examinations; allowing a student to . . . keep water nearby; . . . [or] a
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`larger desk.” 34 C.F.R. § 106.40(b)(3)(ii)(C).
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`In amici’s experience, even modest accommodations, like a larger desk
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`or rescheduling paper deadlines falling the week after a student gives
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`birth, ensure that pregnancy does not imperil a student’s education. By
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`contrast, without these protections, pregnant and postpartum students’
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`educations are too often disrupted or derailed. For example, Student A
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`experienced a life-threatening miscarriage, during which she missed an
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`examination at her post-secondary institution. Rather than permit her to
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`reschedule the exam as a reasonable accommodation, her school assigned
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`her a failing grade.1 Student B requested pregnancy accommodations for
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`months but received no substantive response from school administrators.
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`Because pregnancy is an inherently time-limited condition, month-long
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`delays in providing accommodations are tantamount to accommodation
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`denials. See Peifer v. Commonwealth of Pa. Bd. of Probation & Parole,
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`106 F.4th 270 (3d Cir. 2024). Indeed, Student B eventually gave up
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`seeking the accommodations she needed and left school, incurring a bill
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`for “withdrawing.”
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`2. Lactation spaces and breaks. The Rule will also protect postpartum
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`students’ educations by requiring educational institutions to provide a
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`clean, private, non-bathroom lactation space, as well as reasonable
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`breaks to express milk or nurse. 34 C.F.R. §§ 106.40(b)(3)(ii), (v). Major
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`medical organizations in the United States unanimously recommend
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`breastfeeding, given the well-established health benefits for both parent
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`and child. See Recommendation and Benefits, Ctrs. for Disease Control
`
`and Prevention (Mar. 17, 2023), https://perma.cc/TK62-Q82Q. To ensure
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`they will be able to produce enough milk to feed their child, lactating
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`students must express milk from the body regularly and need breaks
`
`
`1 Amici’s expertise in this area comes directly from experiences of their
`and their partners’ clients. Amici share all the stories referenced in this
`brief through sequentially lettered pseudonym initials with the
`permission of the referenced clients.
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`throughout the day to do so. Dep’t of Health & Hum. Res., The Business
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`Case for Breastfeeding 5 (2008), https://owh-wh-d9-dev.s3.
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`amazonaws.com/s3fs-public/documents/bcfb_easy-steps-to-supporting-
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`breastfeeding-employees.pdf. If they do not pump or nurse their child
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`regularly, lactating students can quickly lose their milk supply and
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`experience complications, including infection. Id. So, for students to
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`nurse or express milk, their schools must provide an appropriate space
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`and sufficient time to do so. The Rule will require just that. 34 C.F.R.
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`§§ 106.40(b)(3)(ii), (v).
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`In amici’s experience, without the Rule, schools often decline to
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`provide students effective lactation accommodations, if any. That forces
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`upon students the impossible choice between their education and
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`providing milk for their baby. For example, when Student C’s school
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`declined to allow her to pump at school, she dropped out.
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`3. Notification of rights. Prior Title IX regulations provide some
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`limited protections for pregnant and postpartum students. See 34 C.F.R.
`
`§ 106.40 (2000). But, in amici's experience, those protections have little
`
`force because students do not know their rights. The Rule directly
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`addresses this problem by requiring schools to give pregnant students
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`clear, affirmative notice of their rights under the law, helping ensure that
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`pregnant and postpartum students can access these rights in practice.
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`See 34 C.F.R. §§ 106.40(b)(2), (b)(3)(i) (requiring detailed notice to
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`pregnant students of their rights to modifications, lactation space, leaves
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`of absence, and more).
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`For example, schools often fail to reinstate students who require a
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`leave of absence to recover from serious pregnancy complications,
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`childbirth, or postpartum depression to their prior academic status. Prior
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`regulations prohibit that practice. 34 C.F.R. § 106.40(b)(5) (2000). But in
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`amici’s experience, few students know that, leaving them vulnerable to
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`mistreatment. During her pregnancy, for instance, Student D requested
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`to attend her college classes remotely after her doctor placed her on
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`bedrest. Rather than offering her modifications or placing her on
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`medically necessary leave, Student D’s school told her that her only
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`option was to withdraw from the college and that there was no guarantee
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`that she would be readmitted once she was ready to return after giving
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`birth. By requiring schools to inform pregnant and postpartum students
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`of their right to reinstatement following leave, the Rule safeguards
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`students from misinformation about their rights.
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`4. Public financial impact. By protecting pregnant and postpartum
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`students’ access to education, the Rule will also protect the public fisc.
`
`Currently, only about half of teenage mothers earn a high school diploma
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`by age twenty-two, compared to 90% of girls who do not have a child as a
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`teen. Cynthia Costello, Inst. for Women’s Pol’y Rsch., Pathways to
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`Postsecondary Education for Pregnant and Parenting Teens, at v (May
`
`2014), https://files.eric.ed.gov/fulltext/ED556724.pdf. Only 2% of teen
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`mothers seventeen and younger graduate college by age thirty. Id. The
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`lifetime cost to taxpayers when a student is pushed out of high school
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`exceeds $292,000. Andrew Sum et al., The Consequences of Dropping Out
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`of High School 15 (Oct. 2009), https://repository.library.northeastern
`
`.edu/downloads/neu:376324. By contrast, single mothers who complete
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`their bachelor’s degree each save the state over $40,000 in public
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`assistance. Lindsey Rechlin Cruse et al., Inst. for Women’s Pol’y
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`Research, Investing in Single Mothers’ Higher Education 15 (Dec. 2019),
`
`https://iwpr.org/wp-content/uploads/2020/07/R600_Investing-in-Single-
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`Moms-National.pdf.
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`II. The Rule protects the health of students and their
`pregnancies.
`
`The Rule’s three key new pregnancy provisions are also essential to
`
`safeguard the health of students—and their ability to carry their
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`pregnancies to term.
`
`1. Reasonable accommodations. The Rule’s new requirement that
`
`schools provide reasonable accommodations—and that they do so
`
`regardless of whether they provide those accommodations to other
`
`students—will promote health. See 34 CF.R. § 106.40(b)(3)(ii)(A). For
`
`example, permissions to eat or drink during class are essential to retain
`
`a healthy amount of amniotic fluid, and restroom breaks are necessary
`
`to reduce urinary tract infections and the associated risk of preeclampsia
`
`and preterm birth. Louisville Dep’t of Pub. Health and Wellness,
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`Pregnant Workers Health
`
`Impact Assessment
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`21
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`(2019),
`
`https://louisvilleky.gov/center-health-equity/document/pregnant-
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`workers-hia-final-02182019pdf.
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`Yet in amici’s experience, in the absence of the Rule, schools often deny
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`students basic modifications necessary for health. Student E was told by
`
`her professor that it “wouldn’t be fair to the other students in class” to let
`
`her take additional bathroom breaks—a common excuse heard by the
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`pregnant students amici serve, and one expressly rejected by the Rule,
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`34 C.F.R. § 106.40(b)(3)(ii)(A). Student F was diagnosed with a high risk
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`of life-threatening hemorrhage and requested a parking spot so she could
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`drive to medical care if specific warning symptoms emerged. Her school
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`refused. Student G requested information about what chemicals she
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`would be exposed to in a chemistry lab, since certain chemicals could pose
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`a risk to her pregnancy. Her professor refused to provide the requested
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`information, or to make any changes to limit exposure, forcing Student G
`
`to choose between her education and the health of her pregnancy. The
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`Rule also identifies intermittent time off for healthcare appointments as
`
`a reasonable accommodation. 34 C.F.R. § 106.40(b)(3)(ii)(C). That is
`
`essential to ensure pregnant and postpartum access to critical medical
`
`care, such as pre- and post-natal appointments, and to avoid health risks.
`
`This care vastly improves health outcomes. See, e.g., Ensuring Healthy
`
`Births Through Prenatal Support, Ctr. Am. Progress (Jan. 31, 2020),
`
`https://www.americanprogress.org/article/ensuring-healthy-births-
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`prenatal-support/. But nearly one in ten pregnant patients struggle to
`
`access vital first-trimester prenatal care because they cannot get time off
`
`of work or school. Rebecca A. Krukowski et al., Correlates of Early
`
`Prenatal Care Access Among U.S. Women: Data from the Pregnancy Risk
`
`Assessment Monitoring System (PRAMS), 26 Maternal and Child Health
`
`J. 328, 337 (2022). The Rule’s reasonable modification provision will
`
`therefore promote the health of pregnant students and their pregnancies.
`
`2. Lactation spaces and breaks. The Rule also protects students’ and
`
`their babies’ health by enabling students who wish to nurse or express
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`milk to do so. By requiring schools to provide postpartum students the
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`space and time they need to pump, 34 C.F.R. §§ 106.40(b)(3)(ii), (v), the
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`Rule will ensure postpartum students, and their new babies, the health
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`benefits of breastfeeding, described above, see supra p. 7–8.
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`In amici’s experience, without the Rule, schools often decline to
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`provide students effective lactation accommodations, causing them to
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`lose their supply or develop health compilations, frequently forcing them
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`to stop breastfeeding altogether. For example, Student H developed
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`mastitis, a painful inflammation of the breast tissue, due to her inability
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`to express milk in the extremely limited time between her law school
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`classes in the weeks following her child’s birth.
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`3. Notification of rights. The Rule will also promote students’ health,
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`and the health of their pregnancies, by ensuring they know about their
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`rights, including their right to leaves of absence, reinstatement, and
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`reasonable modifications. 34 C.F.R. §§ 106.40(b)(2), (3)(i).
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`Leave to recover from childbirth—which requires at least six to eight
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`weeks—is associated with lower rates of infant and child mortality, as
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`well as improved maternal health outcomes. Postpartum, Cleveland
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`Clinic (Feb. 27, 2024), https://my.clevelandclinic.org/health/articles/
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`postpartum; Paid Parental Leave, Statement of Policy, Am. Coll. of
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`Obstetricians and Gynecologists (July 2016), https://www.acog.org/
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`clinical-information/policy-and-position-statements/statements-of-
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`policy/2020/paid-parental-leave. Title IX regulations have long included
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`a provision to offer leave for as long as medically necessary for
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`postpartum students. 45 C.F.R. § 86.40(b)(5) (1975). In practice, however,
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`students have struggled to access time off because of a lack of awareness
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`of their right to it—and of their right to full reinstatement upon their
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`return. The Rule, for the first time, requires schools to clearly inform
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`students of their rights to leaves of absence and to reinstatement. 34
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`C.F.R. §§ 106.40(b)(2), (3)(i).
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`The Rule’s requirement that schools clearly inform students of their
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`rights to leaves of absence will make a critical difference for many
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`students. For example, when Student I asked her school about time off to
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`recover from childbirth, she was incorrectly informed that Title IX only
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`covered pregnancy and that postpartum leave was only available if she
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`had a disabling complication. Student J’s school refused to discuss a plan
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`Case: 24-30399 Document: 95 Page: 19 Date Filed: 09/04/2024
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`for childbirth recovery while she was pregnant, and days after she gave
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`birth, the school told her she had to return for exams. As a result, Student
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`J was not allowed to take the time off that her doctor recommended after
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`a complicated pregnancy and birth.
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`Likewise, Student K wanted just two weeks off to deliver and recover
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`from childbirth, but her college informed her that taking that time was
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`against policy, and that if she missed as little as two days, she could fail
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`her classes. So, Student J—like some other pregnant students—induced
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`labor to avoid missing class. Induction without medical indication can
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`increase the risk of complications including hemorrhage, cesarean birth,
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`fetal stress, and negative impacts on future pregnancies. Choosing Wisely
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`Recommendation #307, Am. Acad. of Fam. Physicians,
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`https://perma.cc/N7XF-EADQ. The Rule mitigates the risks of these
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`harms, ensuring healthier students, healthier pregnancies, and healthier
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`babies.
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`III. The portions of the Rule protecting pregnant and
`postpartum students should go into effect because they are
`unchallenged and severable.
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`The district courts erred by enjoining the entire Rule, including the
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`three key new provisions discussed in this brief. Plaintiffs-Appellees
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`never challenged any of these provisions, and their arguments in favor of
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`an overbroad injunction of the entire Rule overlooked the Department’s
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`explicit severability language and clear intent that they go into effect
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`Case: 24-30399 Document: 95 Page: 20 Date Filed: 09/04/2024
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`even if a court were to enjoin other provisions. “[A] preliminary
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`injunction is an extraordinary and drastic remedy which should not be
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`granted unless the movant clearly carries the burden of persuasion.”
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`Canal Auth. v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974). As such,
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`“[i]njunctions must be narrowly tailored within the context of the
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`substantive law at issue to address the specific relief sought.” E.T. v.
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`Paxton, 19 F.4th 760, 769 (5th Cir. 2021). The Court should let the
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`provisions codified at 34 C.F.R. § 106.40 go into effect because they do not
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`depend in any way on the outcome of litigation over, and are entirely
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`severable from, the challenged provisions.
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`First, where there is “no indication that the regulation would not have
`
`been passed but for its inclusion,” a challenged regulatory provision is
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`severable from the rest of a rule. K Mart Corp. v. Cartier, Inc., 486 U.S.
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`281, 294 (1988). Put another way, as to the unchallenged portion,
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`“[s]everance and affirmance of a portion of an administrative regulation
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`is improper” only if there is “substantial doubt” that the agency would
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`have adopted the severed portion on its own. Davis Cnty. Solid Waste
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`Mgmt. v. E.P.A., 108 F.3d 1454, 1459 (D.C. Cir. 1997). Here, there is no
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`such doubt, because the Department explained that “each of the
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`provisions of these final regulations discussed in this preamble serve an
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`important, related, but distinct purpose.” 89 Fed. Reg. at 33848. The
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`Department specifically “confirm[ed] that each of the provisions in the
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`final regulations is intended to operate independently of each other and
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`that the potential invalidity of one provision should not affect the other
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`provisions.” Id. This should carry the day.
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`Second, even if it did not, severability is appropriate when
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`unchallenged provisions can “operate entirely independently” from or
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`“are not in any way intertwined” with challenged provisions. Davis Cnty.,
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`108 F.3d at 1459 (citing Telephone & Data Sys. v. FCC, 19 F.3d 42, 50
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`(D.C. Cir. 1994)); see also Am. Fuel & Petrochemical Manufacturers v.
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`Env’t Prot. Agency, 3 F.4th 373, 384 (D.C. Cir. 2021) (observing that
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`severance was proper when an unchallenged provision “operates
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`independently”). Here, the unchallenged provisions relating to pregnant
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`and postpartum students operate independently from th