Austin Knudsen joins lawsuit over updated USDA anti-discrimination policy

Superintendent Arntzen applauds Knudsen, denounces Biden administration

By: - July 26, 2022 5:59 pm

Attorney General Austin Knudsen. (Provided by the Montana Attorney General’s Office for the Daily Montanan.)

Montana Attorney General Austin Knudsen joined 21 other Republican state attorneys general Tuesday in suing the United States Department of Agriculture over newly updated guidance regarding free or reduced-price school meal programs.

The lawsuit, filed in the Eastern District of Tennessee, alleges the USDA’s Food and Nutrition Services issued unlawful guidance that “discrimination on the basis of sex” in Title IX and the Food and Nutrition Act includes sexual orientation and gender identity.

Last month, Attorney General Knudsen was part of another coalition of 26 states that called on President Joe Biden to withdraw the USDA’s guidance, according to a press release from his office.

“Holding school lunches for needy kids hostage is reprehensible,” Knudsen said in a press release. “We’re fighting to protect these programs and stop the Biden administration from forcing its radical gender ideology onto Montana schools.”

In May, the USDA announced that it would include discrimination based on sexual orientation and gender identity as a violation of Title IX.  The department instructed schools and states that receive federal funding, including the national school lunch program, to follow the updated guidance.

“Under the leadership of the Biden-Harris Administration, USDA and FNS are issuing this interpretation to help ensure its programs are open, accessible and help promote food and nutrition security, regardless of demographics,” said a press release from the USDA announcing the new guidance.

Montana Superintendent of Public Instruction Elsie Arntzen applauded the lawsuit.

“This guidance does not reflect who we are in Montana,” she said in a press release. “The Biden administration is using our Montana students to advance a political agenda. I stand with our Montana families who rely on school nutrition programs to help feed their children.”

According to her office, 149,000 Montana public school students who currently receive essential nutritional services in school breakfast, lunch, and snack programs and nutrition programs in Montana receive over $40 million annually.

In part, the lawsuit alleges the new rules were issued illegally because the USDA failed to provide adequate notice and a fair opportunity for comment as required by the Administrative Procedure Act.

“The Department’s Memoranda and Final Rule concern highly controversial and localized issues of enormous importance to the States, their subdivisions, affiliates, and citizens. The Department has no power to settle such issues, let alone by executive fiat without providing any opportunity for public comment,” the lawsuit reads.

However, the lawsuit clarified that the plaintiffs “do not deny benefits based on a household member’s sexual orientation or gender identity.”

But it said “the States do challenge the unlawful and unnecessary new obligations and liabilities that the Memoranda and Final Rule attempt to impose—obligations that apparently stretch as far as ending sex-separated living facilities and athletics and mandating the use of biologically inaccurate preferred pronouns.”

The lawsuit also asserts the USDA violated multiple constitutional amendments in issuing the new directive, including the First and Tenth Amendments.

The plaintiffs took issue with the timing of the updated guidance as well, saying it would cause irreparable harm.

“Adopting the Memoranda and Final Rule just weeks before the beginning of the new school year would also undermine Plaintiffs’ reliance interests and create significant logistical obstacles to ensure compliance. Plaintiffs would incur significant administrative and compliance costs if forced to comply with the Memoranda and Final Rule,” the lawsuit read.

The release from the USDA said the new guidance is in line with the 2020 Bostock v. Clayton County decision, in which the U.S. Supreme Court held the prohibition on sex discrimination under Title VII of the Civil Rights Act of 1964 extends to discrimination based on sexual orientation and gender identity.

However, Knudsen pushed back against that reasoning in a press release.

“(The updated guidance) is premised on an obvious misreading and misapplication of the Supreme Court’s holding in Bostock v. Clayton County. Justices clearly stated in the Bostock opinion that it was limited to only Title VII,” the press release from Knudsen’s office read.

Under the new guidance, state and local agencies, program operators, and sponsors that receive funds from FNS must investigate allegations of discrimination based on gender identity or sexual orientation and update their non-discrimination policies and signage to include prohibitions against discrimination based on gender identity and sexual orientation, according to the USDA.

Plaintiffs include Alabama, Alaska, Arizona, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and West Virginia.

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Keith Schubert
Keith Schubert

Keith Schubert is a reporter for the Daily Montanan. Keith was born and raised in Wisconsin and graduated from the University of Minnesota in 2019. He has worked at the St.Paul Pioneer Press, Milwaukee Journal Sentinel and most recently, the Asbury Park Press, covering everything from local craft fairs to crime and courts to municipal government to the Minnesota state legislature. In his free time, he enjoys cheering on Wisconsin sports teams and exploring small businesses. He can be reached by text or call at 406-475-2954 .