A federal judge has struck down an attempt by Alabama, Florida, Georgia and South Carolina to halt enforcement of the Biden administration’s final rule for Title IX, shortly before the final rule takes effect nationwide on Thursday.

The administration’s updated regulations — which seek to extend federal discrimination protections for LGBTQ students — have been met with a wave of GOP pushback since being announced by the Department of Education in April.

Though the final rule is slated to go into effect on Thursday, it’s now blocked in 22 states and has faced mounting legal uncertainty.

“In short, although Plaintiffs may dislike the Department’s rules, they have failed to show a substantial likelihood of success in proving the Department’s rulemaking was unreasonable or not reasonably explained,” Judge Annemarie Carney Axon of the U.S. District Court for the Northern District of Alabama wrote Tuesday in a 122-page opinion.

Axon, who was appointed by then-President Donald Trump, also wrote that “the evidentiary record is sparse, and the legal arguments are conclusory and underdeveloped.”

In late April, the group of Southern states, all with GOP attorneys general, sued the administration in federal court in Alabama over the regulations. Multiple organizations also tacked onto the lawsuit, including the Independent Women’s Law Center, the Independent Women’s Network, Parents Defending Education and Speech First.

They quickly appealed Tuesday’s ruling later in the day to the U.S. Court of Appeals for the 11th Circuit.

Since the department released the final rule, 26 states in total have signed onto lawsuits seeking to block the updated regulations from taking effect.

Across multiple temporary injunctions, the final rule is blocked in Alaska, Arkansas, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming.

On Wednesday, Judge Jodi W. Dishman of the U.S. District Court for the Western District of Oklahoma halted the final rule from taking effect in the state. Oklahoma individually sued the administration back in May.

To further complicate the matter, when Judge John Broomes of the U.S. District Court for the District of Kansas temporarily blocked the measure in the Sunflower State, Alaska, Utah and Wyoming earlier in July, he extended it to also include “the schools attended by the members of Young America’s Foundation or Female Athletes United, as well as the schools attended by the children of the members of Moms for Liberty,” all groups that sued alongside those four states.

This means the final rule is blocked in schools across the country, including in states that never challenged the updated regulations. Despite Axon’s Tuesday ruling, the final rule will still be halted in any K-12 school or college in Alabama, Florida, Georgia and South Carolina that is impacted by the earlier Kansas decision.

The Department of Education did not immediately respond to a request for comment.

A new analysis of the Nov. 5 ballot measure aiming to eliminate state sales taxes on groceries projects state revenue losses ranging from $134 million to $646 million annually.

On Tuesday in Pierre, the Legislative Research Council presented the analysis to lawmakers on the state budget committee. Council employees provide research, analysis and administrative support to legislators.

Backers of the citizen-initiated ballot measure only aim to prohibit state sales taxes on groceries, but the measure references items sold for “human consumption.” The wide range of potential revenue losses depends on how “human consumption” is interpreted. 

“This is why words matter,” said Jeff Mehlhaff, the council’s chief fiscal analyst. 

A narrow interpretation limits the measure’s impact to groceries. A broader interpretation includes many goods and services used by people, based on definitions and interpretations of “consume” and “consumption.” Utilities, toiletries and car repairs are some examples cited by the council as goods and services technically “consumed” by humans.  

The narrow definition would reduce state revenues by an estimated $133.6 million. The broader interpretation would result in an estimated revenue loss of up to $646.2 million. The state’s total annual budget is $7.3 billion.

A coalition formed to oppose the ballot measure says that in addition to affecting state sales taxes, the measure would affect city sales taxes, due to a state law that say cities cannot tax anything the state doesn’t tax. Yet the actual language of the measure says “municipalities may continue to impose such taxes.”

New group argues grocery tax repeal could lead to income tax; sponsor calls claim a ‘fool’s errand’

When asked about that, Mehlhaff said, “I’m just leaving that where it is because it says municipalities may continue to impose such taxes.” 

Rep. Tony Venhuizen, R-Sioux Falls, said voter passage of the measure could precipitate the worst budget cuts since the 10% across-the-board reductions during the 2011 legislative session.

“If the people vote for this, they need to know that when we come during January, we are not going to be doing increases for anything,” he said. “We’re going to make significant budget cuts.”  

Retailers such as Walmart, Sam’s Club and Dollar General, which classify a significant portion of their sales as groceries and consumables, could see a substantial portion of their sales untaxed under the new measure, according to the analysis. It estimates that 59% to 81% of sales at those retailers could be affected.

The analysis says the Legislature would need to clarify the definition of “human consumption” to determine the measure’s full fiscal impact, should the measure pass.

Proponent says LRC recommended language

Rick Weiland runs Dakotans for Health, the group behind the ballot measure. He said the measure initially said “anything sold for eating or drinking by humans,” but was changed to “anything sold for human consumption” because the Legislative Research Council recommended it.

A 2022 letter to Weiland from the council suggested the initial wording was “overly vague, inviting various interpretations in determining its meaning.” The council recommended using terms like ingestion, chewing or consumed.

“These terms seem to be more precise than ‘eating and drinking,’ as they may better capture the various elements of food and beverage consumption,” the council wrote to Weiland. 

Following this advice, Weiland said, his team revised the language to “anything sold for human consumption, except alcoholic beverages and prepared food.” 

Attorney General Marty Jackley has since stated that “human consumption” is not defined by state law, and its common definition encompasses more than just food and drinks. 

Weiland’s attorney sought clarification from Jackley in a February 2023 letter and email, but said he received no response.

Mehlhaff told budget committee members that the language used in the final draft is not the council’s recommendation, pointing to another line in the 2022 letter that offered a possible rewrite: “The retail sale of any food or food ingredient for any purpose is exempt from any tax imposed by law.”

Mehlhaff said if the measure passes, lawmakers could attempt to amend or repeal it before its effective date on July 1, 2025. 

Lawmakers expressed frustration Tuesday in Pierre over the uncertain price tag for construction and operations of a proposed men’s prison in Lincoln County.

Members of the Legislature’s Appropriations Committee also had pointed questions for Department of Corrections officials on alternative sites for the project, which has sparked a lawsuit from nearby neighbors and represents the most expensive taxpayer-funded capital project in state history.

“I’m just flabbergasted that we’ve not yet wrapped our arms around this as a total package,” said Rep. John Mills, R-Brookings.

Wealth of controversies, outbreaks of violence spark questions on prison oversight

Lawmakers have already dedicated more than $569 million to the project across the past two legislative sessions, including $62 million in preparatory spending. The rest sits in an incarceration construction fund.

The guaranteed maximum price for construction is expected in early November, DOC Secretary Kellie Wasko and Finance Director Brittni Skipper testified on Tuesday. That fixed price wouldn’t change, Skipper said, even if inflation or other construction costs increase.

Some lawmakers, including Sen. Jim Bolin, R-Canton, struggled to understand how a company could make such a promise. 

“If you’re talking about an $800 million project, maybe more, if you make a mistake on that, you can bankrupt your whole company,” Bolin said.

Skipper told Bolin the DOC has a construction manager at-risk, JE Dunn and Henry Carlson Construction, who will build three years of projected inflation into the promised price.

“It’s in their contract to provide to us a guaranteed maximum price,” Skipper said, noting that the DOC has a similar arrangement for a new women’s prison under construction in Rapid City.

Rep. Chris Karr, R-Sioux Falls, was one of several lawmakers to push Wasko and Skipper about the potential ongoing costs associated with the prison once it’s complete. Karr and other committee members asked about prison population growth and staffing projections.

“If we’re going to make this huge investment, are we going to be able to house everybody?” Karr said.

Wasko said she doesn’t trust inmate population projections any further than five years out. 

She said too many things can change, including when lawmakers create new felony crimes or toughen penalties. They did that with 2023’s “truth in sentencing” bill, which now forces those convicted for violent offenses to serve most or all of their prison terms.

“Our rate of incarceration is not slowing down. It’s actually speeding up,” Wasko said. 

Even so, she said, the 1,500-bed proposal would offer the agency breathing room, as it’s designed to be a maximum-security facility capable of managing overflow from other areas of the system. The prison would take on most of the inmates now housed at the penitentiary in Sioux Falls.

Rep. Tony Venhuizen, R-Sioux Falls, said he understands that projections can change, but also said it’s important for appropriators to have a better sense of what they’re committing to.

“This could be a pretty considerable ongoing cost, and I do think at some point during the next session, we’re going to need a ballpark of what that might be,” Venhuizen said. 

Skipper said the previous ballpark estimates anticipated 130 more employees and approximately $15 million in ongoing funding.

Sen. Red Dawn Foster, D-Pine Ridge, wanted to know if the DOC had consulted with the state’s Supreme Court, Unified Judicial System or Attorney General’s Office to drill down on what to expect in terms of offender population growth. 

Wasko said the DOC hadn’t reached out to those agencies to talk about projections.

Opposition won’t cause state to change prison location, official says

Steve Haugaard, a Republican former lawmaker and one-time primary candidate for governor, seized upon that point during his testimony, which he offered via video feed later in the afternoon.

Haugaard argued that lawmakers were spending too much money on prisons without clear goals for managing corrections and criminal justice as a whole. Haugaard argued that “the building is going to control the overall policy,” and said policy guidance ought to come first.

Upon hearing that the DOC hadn’t consulted with the courts or attorney general, he said, “I just wonder what are we doing?” Haugaard said.

“We don’t have a corrections policy that’s firmly in place,” Haugaard said. “And from what I can see from those stats from the past 40-plus years, we didn’t respond to the ever-increasing spike in incarceration rates.”

Wasko said, as she has in the past, that South Dakota stands out from many other states for harsh penalties. But she also said that as a member of the executive branch, her responsibility is to manage an offender population, not to influence its size.

“There’s a judicial branch, the legislative branch, and I’m the executive branch, and there’s reasons for that,” Wasko said. “I would not be responsible for anything on the front end of incarceration.”

Wasko got backing on that point from Rep. Rep. Linda Duba, D-Sioux Falls, said the courts, prosecutors and lawmakers need to be proactive in criminal justice policy. She said the new facility is needed to make space for treatment and rehabilitation programs.

During another line of questioning, Karr asked about recent heavy rains and the possibility of flooding. He wanted to know if the proposed prison site is in a flood plain. 

Haugaard also keyed in on flooding potential, as did Kyah Broders, one of the Lincoln County residents suing the DOC over its site selection process.

The area did see several road closures during the heavy rains, she said Tuesday. 

“Adding sewage ponds and tons of concrete will only compound this issue in the future,” she said.

Skipper said the site is not in a flood plain. She showed the committee a photo of the land shortly after the historic June rainfall that wreaked havoc on communities in southeast South Dakota.

“You can see from those photos that there was minimal water damage to the site, without any soil being moved or anything being done,” Skipper said. 

In response to an email about the rainfall, DOC spokesman Michael Winder sent the photos shown to the lawmakers and wrote that the project’s civil engineer “will prepare the design for watershed from the property that would include any stormwater runoff.”

Bolin asked what might happen if Broders and her fellow prison site opponents succeed in forcing the state to apply for a county zoning permit and the county refuses to grant one.

“We do not have a valid or developed plan B if that ruling does not come through for us,” Wasko said.

Bolin, who is not returning to Pierre for the next legislative session, closed out the prison site update portion of Tuesday’s meeting by returning to the influence harsh penalties have on prison populations.

Bills meant to get tough on crime and “lock them up and throw away the key” have appeared in nearly all of his 16 years in Pierre, Bolin said.

For future lawmakers, he said, “If you really believe that, you’ve also got to be prepared to pay the bill.”