Knudsen Joins Another Title IX Challenge

Last week, Montana Attorney General Austin Knudsen announced his participation in a multi-state lawsuit challenging a federal anti-discrimination directive for school nutrition programs throughout the country. Knudsen cast the directive as a politically motivated threat against Montana’s public school system, and accused President Joe Biden’s administration of “holding school lunches for needy kids hostage” in furtherance of a “transgender agenda.”

“We’re fighting to protect these programs and stop the Biden administration from forcing its radical gender ideology onto Montana schools,” Knudsen said in announcing the lawsuit, filed in federal court in Tennessee July 26 by Knudsen and 21 other Republican state attorneys general.

The legal challenge was the latest salvo in an ongoing battle over Biden’s extension of Title IX discrimination protections to transgender people — a battle being led primarily by Republican- controlled states that have recently passed policies restricting trans participation and protections. In this particular case, Knudsen and others set their sights on a U.S. Department of Agriculture directive requiring schools that receive federal school nutrition funding to update their nondiscrimination policies to prohibit discrimination based on sexual orientation and gender identity and to investigate any allegations of such discrimination. According to the state Office of Public Instruction, Montana received nearly $70 million in federal funding from June 2020 to July 2021 to support a host of school food programs including breakfasts, lunches and summer food service.

By virtue of the lawsuit’s tie to education, Knudsen’s participation prompted another statewide election official to voice her gratitude: Superintendent of Public Instruction Elsie Arntzen.

“The Biden administration is using our Montana students to advance a political agenda,” Arntzen said in an emailed statement applauding Knudsen’s decision. “I stand with our Montana families who rely on school nutrition programs to help feed their children.”

Last week was hardly the first foray into the Title IX debate for either Republican. Nor is it the first time Knudsen and Arntzen have come together on a hot-button national issue since they took their oaths of office in January 2021 — Knudsen at the start of his first term, Arntzen at the start of her second. In the interest of charting Montana’s central role in fighting some of the higher profile skirmishes of America’s culture wars, and understanding how Montana’s elected leaders are aligning along national political fault lines in public education, here’s a look at where the state’s top lawyer and the leader of its K-12 school system have publicly converged over the past 19 months.

Critical Race Theory

One of the earliest examples of that convergence came on the heels of a legislative session punctuated at turns by insinuations of controversial race-based instruction creeping into Montana schools. Citing concern about the incorporation of “anti-racist” teachings in public school classrooms, Arntzen requested a legal opinion from Knudsen in May 2021 on the constitutional legality of critical race theory.

The phrase, which for decades described an academic framework employed by legal and civil rights scholars, had recently become a catch-all for self-styled parental rights activists and conservative organizations to describe any instruction they saw as advancing notions of inherent racism or white privilege. When the U.S. Department of Education issued a proposed rule in spring 2021 to prioritize grants for American history and civics programming to schools that incorporate racially and ethnically diverse perspectives in their curricula, CRT critics grew incensed. The rule factored heavily in Arntzen’s call for a legal analysis.

“OPI has serious concerns about the effect of this proposal on the education of students in Montana,” the request read. “It also raises serious questions as to whether it encourages schools to treat students differently on the basis of race in violation of federal and state nondiscrimination laws.” OPI spokesperson Brian O’Leary confirmed via email this week that the request was drafted at a time when the agency’s chief legal counsel position was vacant. As such, he said, staff attorneys from the Montana Department of Justice assisted Arntzen in crafting the request.

In response, Knudsen issued a 25-page opinion arguing that any school engaging in lessons that promote feelings of discomfort, guilt or “other psychological distress” among students based on their race “almost certainly creates a racially hostile environment.” While Knudsen did not mention a single instance of such instruction occurring in Montana, he did conclude that any anti-racist or CRT teachings would constitute a violation of the U.S. and Montana constitutions, as well as the Montana Human Rights Act. Knudsen further pledged that his office was ready to assist OPI and individual Montanans with complaints about race-based discrimination, and cautioned schools that any violation of civil rights laws would “jeopardize their funding.”

The ACLU of Montana promptly released an institutional statement denouncing the opinion, writing that Knudsen “perverts landmark civil rights laws and Supreme Court decisions” that were meant to mitigate and address systemic racism. Quoting Arntzen’s own past statements on the issue of racially and culturally diverse education, the organization emphasized the importance of teaching diverse stories and recognizing when, as Arntzen put it, “our country has fallen short of its lofty goals.” Meanwhile, Arntzen applauded Knudsen’s opinion, stating that despite the value of teaching about difficult episodes in the history of Montana and America, critical race theory is “not critical thinking.”

“It distorts our shared history and too often is used to demean and belittle students based on the color of their skin through segregation, stereotyping, and scapegoating,” Arntzen wrote in response to the opinion. “Discrimination cannot happen in Montana classrooms; not on my watch. I thank Attorney General Knudsen and his staff for their diligent and thorough review of this subject.”

The U.S. Department of Education ended up softening its approach that summer, opting to encourage rather than prioritize racially and ethnically diverse teaching. Even so, concern over critical race theory became a prominent force in school board races across Montana, and the issue was one of the featured topics during OPI’s virtual School Law Conference in fall 2021.

Title IX

Also among the agency’s slate of law conference presentations last November was a discussion of federal nondiscrimination protections led by Christian Corrigan, Knudsen’s assistant solicitor general and a former employee at the U.S. Department of Education’s civil rights division under President Donald Trump. Corrigan spoke at length about Montana’s recently passed law barring transgender women and girls from participating on women’s sports teams in schools, and more broadly about the national legal landscape around Title IX.

Two months prior, Knudsen had joined 19 other Republican attorneys general in a lawsuit challenging Biden administration guidance extending Title IX protections to transgender workers and students seeking to access locker rooms, bathrooms and sports teams corresponding to their gender identity. The lawsuit — filed in the same federal court in Tennessee as last week’s Title IX complaint — argued that the guidance could jeopardize federal funding for schools in states with newly passed restrictions for transgender athletes, such as Montana. That guidance was temporarily blocked last month by the judge overseeing the case.

While the issue featured prominently in OPI’s law conference, Arntzen did not take a public position on the lawsuit itself. In response to emailed questions about Montana’s involvement in the latest Title IX challenge, O’Leary wrote that Arntzen has “always relied on our AG” regarding federal issues, with information flowing between Knudsen’s office and staff attorneys at OPI. As for how Knudsen’s participation in the case aligns with Arntzen’s objectives for public education in Montana, O’Leary said, “the Superintendent believes in less federal intrusion into our locally controlled public schools.”

Kyler Nerison, a spokesperson for the attorney general’s office, characterized the broader issue as an attempt by Biden to “weaken Title IX protections for women” — an attempt, he said via email, that Knudsen has “been a national leader in fighting.” However, Nerison distanced OPI from the conversations about joining the multi-state lawsuits.

“Attorney General Knudsen speaks often with different elected officials, including Superintendent Arntzen,” he wrote, “but decisions about litigation against the federal government are made internally.”

The growing debate over transgender protections also attracted the attention last week of Republican Gov. Greg Gianforte, who joined 14 other governors in signing a letter to Biden urging his administration to stop pushing what they called “misguided reinterpretations of Title IX that hurt girls, women, and all children across our country.”

“If your Administration chooses to move forward with these reinterpretations of Title IX,” the letter read, “our states will have no choice but to pursue avenues to redress any harm that is done to our children as a result. We trust that you will give attention to the concerns we have outlined and look forward to an expedient resolution that will keep food in the mouths of our children and fairness on the playing field.”

Parental Rights

Last fall, the National School Boards Association drew widespread criticism after requesting that the U.S. Department of Justice establish a task force to investigate threats and acts of violence against school officials and educators sparked by critical race theory, COVID-19 protocols and myriad other issues. Arntzen emerged as one of those critics, publicly calling on the Montana School Boards Association to cut ties with the national organization and join her in “unified support of our students and parental rights.”

Despite a public apology from the NSBA in October, the episode fueled another multi-state lawsuit against the Biden administration filed this spring, this one demanding that Biden, U.S. Education Secretary Miguel Cardona and U.S. Attorney General Merrick Garland surrender emails, memos and other documents related to the organization’s request. Knudsen was among the 14 Republican attorneys general who launched the litigation.

“Parents concerned with what their kids are being taught in school are not domestic terrorists — and the White House’s attempt to label them as such is deeply troubling,” Knudsen said in a statement distributed by OPI March 7. “Montanans deserve a full accounting of the Biden administration’s plans to surveil parents who attended school board meetings.”

In the same announcement, Arntzen — already an outspoken supporter of the parental rights movement — praised Knudsen for supporting “our Montana family values and government transparency.”

Given the heightened profile of public education issues in recent years, civil rights and race-based instruction are likely not the only issues where Arntzen and Knudsen will find shared ideological ground and opportunities for action. O’Leary wrote that Arntzen has had “a strong relationship” with both Knudsen and his predecessor as attorney general, Republican Tim Fox, and that Knudsen’s office is actively representing OPI as the defendant in a class-action lawsuit alleging the state’s failure to make good on its constitutional guarantee of Indian Education for All. That lawsuit was filed in Cascade County District Court last summer by the ACLU, the Native American Rights Fund and five Montana tribal communities.

O’Leary added that Knudsen’s office is also working with OPI and other state attorneys general offices on a federal rulemaking petition related to “student discipline.” O’Leary said he could not elaborate on the latter because “the details are still being worked on.”