Today the Governor sent an email to various persons about the Obama administration’s “guidance letter” relative to privacy in intimate public settings like school bathrooms, locker rooms, showers, and dorm rooms. We appreciate the fact that the Governor has now addressed the issue. Here is what he said:

“The White House itself has said what they issued last week is not an enforcement action and does not make any additional requirements under the law. Congress has the authority to write the law, not the executive branch, and we disagree with the heavy-handed approach the Obama administration is taking. Decisions on sensitive issues such as these should continue to be made at the local level based on the unique needs of students, families, schools and districts while working closely with the local school board counsel, understanding that this is an emerging area of law that will ultimately be settled by the courts.”

By David Fowler

However, this statement should be evaluated in light of the kind of statement made on Friday by the Attorney General of the state of Oklahoma, and then the deficiencies in Gov. Haslam’s statement will become more apparent:

“We believe that your [Obama administration’s] actions today are unlawful and that they represent the most egregious administrative overreach to date. . . . And you have done so through a misuse of the spending power. Please be advised that if you attempt to enforce this “significant guidance letter” on schools in the State of Oklahoma, we will vigorously defend the State’s interests.”

Evaluating Gov. Haslam’s response

There are, in our opinion, several things “missing” from the Governor’s statement.

1. The Governor’s first statement is simply a reiteration of the President’s position, but the important thing is that by saying “gender identity” can be substituted for the word “sex” that is actually in the law, the President is effectively saying, “This is the law.” The point that should be made by the state is that the President is wrong and a “guidance letter,” under the circumstances, is not the law and that the President is, indeed, “mak[ing] additional requirements.” A clear statement in this regard was missing.
2. To say, “Congress has the authority to write the law,” is not a clear statement by the Governor that the President’s “guidance letter” is not the law. It says this by implication, but not as directly and clearly as the Oklahoma Attorney General did.
3. By not making such a statement and by not saying what, if anything, the state, as the state, will do if the President tries to enforce its “guidance” or if the ACLU sues a school district, it leaves local school districts to wonder if the state “has their backs” if something happens. This assurance was missing. In fact, by suggesting that the school districts “work” with “the local school board counsel,” the implication is that the state is not going to get involved in any way to protect them and that the school board’s lawyer needs to tell the school board whether it should resist the President and the ACLU and decide that issue for itself.
4. The Governor’s statement is essentially the same as the position he took on House Bill 2414 (the “bathroom bill”)—we don’t want the state to be involved in a lawsuit.

What should be done

In our opinion, one of two things should happen:

1. The Governor or Attorney General Must Clarify the State’s Position.

The Governor and Attorney General should do one of two things:

• Initiate a declaratory judgment action against the Obama administration like the lawsuit North Carolina filed. The issue is whether the “guidance letter” is or is not the law. If not, then schools can rest at ease knowing they can’t be sued by the Obama administration over Title IX. Essentially, that is what the Oklahoma Attorney General has indicated by his letter that he will do.
• Short of that, they should tell the state’s citizens and particularly our legislative policy makers and local school boards if they will initiate an action to assert our state’s right to define its own bathroom, locker room, shower, and dorm room policies if the President seeks to enforce the “guidance” he’s given to the schools or if the ACLU should sue a local school. At a minimum, an unambiguous public statement that the state “has their backs” in court is necessary.

2. The Legislature Must Act.

If the Governor and Attorney General will not file suit or publically declare that the state will file a suit if necessary, then the General Assembly should consider the value of a quickly called one-day special session to do at least one of the following two things, if not both:

• Pass legislation to authorize the Attorney General to intervene in any lawsuit against a local school system in which Title IX funds may be at risk. That legislation was actually drafted when it became apparent that House Bill 2414 would not go forward. It was too little too late at that point in the session. Of course, the Legislature cannot make the Attorney General get involved in any such suit, which leads to the second action.
• Pass a resolution similar to Senate Joint Resolution 467 (urging the Attorney General to sue over the refugee resettlement program) that urges the Attorney General to file a declaratory judgment action against the Obama administration like the one filed by the state of North Carolina or at least to intervene in any lawsuit against a local school district and, if the Attorney General does not act, authorizes the two Speakers to hire outside counsel to handle such legal action through use of a public interest legal organization that could sue on behalf of the state at no expense to taxpayers.

At stake in all of this is the rule of law: Can a letter from a Cabinet Secretary take on the force of law? If so, then what will future Cabinet Secretaries in the EPA say about the timber and coal industries, the Department of Commerce say about business regulations or Obamacare, or the Treasury Secretary say about banking and savings and loans? It is time for states to take a stand.

David Fowler is president of Family Action Council of Tennessee.