Sex and Gender Identity under Title IX: New Guidance for Interpretation - Podcast

Civil Rights Practice Group Podcast
M. Edward Whelan May 19, 2016

On Friday, May 13, the Department of Education and the Department of Justice jointly released new guidance outlining how educators are to interpret Title IX of the Education Amendments of 1972; specifically in the context of transgender students. Under Title IX, schools that receive federal money must not discriminate on the basis of a student’s sex. Friday’s new guidance directs that educators are to consider a student’s sex to mean the gender with which that student self-identifies, not the gender on their birth certificate. Key implications of the guidance are that students will participate in sex-segregated activities and use bathroom facilities according to self-identification, regardless of what school records or identification documents indicate. Our expert discussed the implications of the new guidance.


  • M. Edward Whelan, President, Ethics and Public Policy Center

United States v. Texas - Post-Argument SCOTUScast

SCOTUScast 5-12-16 featuring Josh Blackman
Josh Blackman May 12, 2016

On April 18, 2016, the Supreme Court heard oral arguments in United States v. Texas. This case relates back to the Department of Homeland Security’s (DHS) 2012 Deferred Action for Childhood Arrivals (DACA) program, which set forth special criteria to direct how DHS should exercise prosecutorial discretion in enforcing federal immigration laws against certain young persons. In 2014 DHS issued a memo that then expanded eligibility under DACA and directed establishment of a similar program for the parents of DACA-eligible persons: Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)..

Twenty-six states sued in federal district court to prevent the DHS from implementing DAPA, arguing that DAPA violated the Administrative Procedure Act (APA) because it had not gone through a notice-and-comment process, and was moreover arbitrary and capricious. The states also argued that DAPA abrogated the President’s constitutional duty to “take Care that the Laws be faithfully executed.” The district court concluded that of the suing states, Texas had standing, and temporarily enjoined implementation of DAPA after determining that Texas had shown a substantial likelihood of success on its notice-and-comment claim. The U.S. Court of Appeals for the Fifth Circuit affirmed that ruling, and further held that the other states had standing and has shown a substantial likelihood of success on both the notice-and-comment and arbitrary and capricious components of their APA claims.  The Fifth Circuit did not reach the Take Care clause claim.

The four questions before the Supreme Court in this case are: (1) whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the APA to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3--a question the Court itself directed the parties to brief.

To discuss the case, we have Josh Blackman, who is Assistant Professor of Law at South Texas College of Law.

McDonnell v. US: Corruption or Federal Overreach?

Short video featuring Rachel Paulose
Rachel Kunjummen Paulose April 25, 2016

Partner at DLA Piper LLP and Former U.S. Attorney Rachel Paulose discusses the appeal of Governor McDonnell’s criminal conviction for corruption because he accepted gifts and money from Williams in exchange for helping Williams develop his business in Virginia. Governor McDonnell denies violating the relevant federal laws. The Supreme Court hears the case on Wednesday, April 27. 

Federalism and Municipal Broadband - Podcast

Telecommunications & Electronic Media Practice Group Podcast
Raymond L. Gifford March 21, 2016

On March 17th the United States Court of Appeals for the Sixth Circuit heard oral arguments in The State of Tennessee et al. v. FCC. This appeal involves a challenge to the FCC’s March 2015 order that preempted certain provisions of Tennessee and North Carolina state laws, which impose restrictions on the deployment of municipal broadband services. The Sixth Circuit will determine whether the FCC has the power to intervene and define the relationship between state and municipal governments when it comes to providing these services. Our expert discussed the FCC’s order, the parties’ arguments, and the takeaways from the oral argument.


  • Raymond L. Gifford, Wilkinson Barker Knauer LLP