As South Dakota sues federal government over Title IX, school districts await guidance

Although the school year is almost over for most Sioux Falls-area schools, by the time they come back in session this fall, new Title IX regulations will be in effect.

That’s because the U.S. Department of Education released its Final Rule under Title IX on April 19, with several changes, including prohibiting discrimination based on sexual orientation, gender identity (which includes protections for being transgender or nonbinary, for example) and sex characteristics in education programs or activities receiving federal financial assistance.

But that’s a change state leaders, including Gov. Kristi Noem, attorney general Marty Jackley and South Dakota Department of Education Secretary Joe Graves, don’t want to be made. The state is currently involved in two lawsuits against the federal changes, and Graves has asked public school districts not adhere to the changes at this point.

The conflict between state and federal leaders has left South Dakota’s school districts in limbo as they wait for more decisions at the state and federal levels, and wait for their attorneys or legal counsel to advise them on the next steps to take.

South Dakota Gov. Kristi Noem: 'We will see President Biden in court'

A week after the USDOE announced the impending changes, Noem said in a column that President Joe Biden was “orchestrating an all-out assault on women” and giving “mediocre men the right to steal opportunities from exceptional women.”

Noem also argued the rule change “blatantly ignores” states’ rights to enforce their own laws, and referenced the bill she signed in 2022, Senate Bill 46. The law segregates sports by sex assigned at birth, effectively keeping trans students, especially trans women and girls, from playing on sports teams that would affirm their gender identity.

More: Gov. Kristi Noem signs 'fairness' bill, limiting transgender athletes' access to sports

“We will defend our laws,” Noem later said in a news release April 29. "We will preserve the rights of women. And we will see President Biden in court."

Jackley also said in a release that the Biden administration is undermining state authority and "one of Title IX’s major achievements, giving young people an equal opportunity to participate in sports.”

After that release went out, the ACLU of South Dakota criticized Noem’s and Jackley’s remarks as “political grandstanding” and said South Dakota politicians continue to use trans youth “as a political punching bag.”

ACLU of South Dakota advocacy manager Samantha Chapman said in a press release that banning trans girls from sports jeopardizes their mental health, physical well-being and ability to access educational opportunities comparable to their peers.

“Trans students participate in sports for the same reasons other young people do: to challenge themselves, improve fitness and be part of a team,” Chapman said in a press release. “Transgender youth in South Dakota deserve all of the benefits that come with participating in sports. They also deserve joy, opportunity and protection, not more bullying from the governor.”

Then on May 2, Graves sent a letter to local districts across the state asking them to refrain from changing and implementing policies to reflect the Title IX rule changes by the U.S. DOE. The letter’s existence was first reported in the Dakota Scout.

In the May 2 letter, Graves wrote his department is concerned the rule changes by the U.S. DOE place federal Title IX regulations in direct opposition to state law; impinge upon First Amendment rights, due process guarantees and parental rights; misapply a U.S. Supreme Court opinion; and, threaten funding districts rely on to ensure compliance.

“Given those concerns and given the state guarantees to defend school districts against litigation emanating from some of these provisions, I encourage you to consider state challenges to these reinterpretations and reflect upon the ramifications these may have for your female students, the very people Title IX was designed to serve,” Graves wrote.

Then on May 7, South Dakota joined a lawsuit with Arkansas, Iowa, Missouri, Nebraska and North Dakota against the USDOE’s rule changes, alleging the USDOE exceeded its authority in rewriting the law, violates the First Amendment and more, seeking to stop the rule taking effect Aug. 1.

And on May 14, Noem and Jackley announced South Dakota joined another lawsuit against the rule changes, this time with Tennessee, Alabama, Alaska, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Nebraska, Ohio, South Carolina, Utah, Virginia, and West Virginia.

Which Sioux Falls-area school districts are seeking legal clarity?

Most area school districts have received the letter from Graves and handed it off to their legal counsel for review over the summer, with district officials explaining any changes to policy would go through their school boards.

Sioux Falls School District community relations coordinator DeeAnn Konrad said the district has received the relevant communications about changes to Title IX and will review current policies to determine if any modifications will be necessary by Aug. 1, and will monitor any directives that may result from the state’s federal lawsuits against the U.S. DOE.

Tea Area School District Superintendent Jennifer Nebelsick Lowery, Lennox School District Superintendent Chad Conaway, Baltic School District Superintendent Eric Bass and Brandon Valley School District Superintendent Jarod Larson said they received the letter and forwarded the information to their school district’s attorney or legal counsel as well.

More: Sioux Falls School District to appeals court: When can a female sport be eliminated?

Lowery said there might be training for school board members and school attorneys across the state this summer to learn more about the policy, state laws, federal laws and changes. Lowery, Tri-Valley School District Superintendent Mike Lodmel and Canton School District Superintendent Russ Townsend said they intend to attend those training sessions.

Bass said he’s still waiting on the district’s attorney’s opinion, and that he hasn’t had a chance to read through the new regulations of the Title IX policy, “so speaking to them currently would be from an uninformed perspective.”

Dell Rapids School District Superintendent Donavan DeBoer said the changes are so new that “we have not had a chance to really get into it,” and that it would be inappropriate for him to comment.

Garretson School District Superintendent Guy Johnson said he wasn’t willing to comment on Noem’s or Graves’ complaints or litigation toward the new Title IX regulation either.

Harrisburg School District Superintendent Tim Graf and West Central School District Superintendent Eric Knight did not respond to requests for comment.

This article originally appeared on Sioux Falls Argus Leader: SD school district attorneys reviewing Title IX suits, rule changes