By Josh Gerstein with Politico
The Supreme Court announced Monday, over the dissent of one conservative justice, that it will not review a legal precedent key to an appeals court ruling last month requiring public schools to allow transgender students to use bathrooms corresponding to their gender identity.
The justices declined to take up a student debt-collection case that asked the court to overrule a 1997 precedent, Auer v. Robbins, that said the judicial branch should defer to a federal agency's interpretation of its own regulations.
That case is the main one a 4th Circuit Court of Appeals panel relied on when it upheld the right of a transgender boy to use the boys' bathrooms at a Virginia high school. There is no federal regulation specifically on the point, but the Education Department has issued guidance indicating that such treatment is required by the sex-discrimination prohibition in Title IX on schools receiving federal funds.
The case turned down Monday was United Student Aid Funds v. Bryana Bible.
Justice Clarence Thomas said in his dissent that the court should have taken the case and considered overturning Auer, as well as a related 1945 precedent.
"Any reader of this Court’s opinions should think that the doctrine is on its last gasp. Members of this Court have repeatedly called for its reconsideration in an appropriate case," Thomas wrote. He noted that Chief Justice John Roberts, Justice Samuel Alito and late Justice Antonin Scalia all called in various cases for the doctrine to be reconsidered.
Despite the positions Roberts and Alito took in those earlier cases, they did not join Thomas in his dissent Monday. Four votes are needed for the Supreme Court to take a case. The court does not provide a tally of the votes on each case nor a list of which justice voted which way, although justices are free to publicly note their dissent if they choose or to write an opinion dissenting from the decision, as Thomas did in the opinion released Monday.