SC, others sue Biden Administration over school nutrition assistance

COLUMBIA, SC (WCSC) – South Carolina’s attorney general joined 21 other attorneys general in a lawsuit filed Tuesday over what it calls new White House guidance on sex discrimination that threatens schools and programs that rely on federal nutrition assistance.

The USDA’s Food and Nutrition Services issued guidance to states on May 5 announcing that discrimination based on sex in Title IX and the Food and Nutrition Act includes discrimination based on “sexual orientation and gender identity,” Attorney General Alan Wilson says.

That, he said, put South Carolina’s Title IX and SNAP school lunch funding at risk.

“I’m not going to stand by and let the Biden administration hold school lunches hostage over radical ideology,” Wilson said. “This administration continues to try to redefine its role, but no matter what they want to do, this administration can’t redefine its executive power defined in the Constitution. The fact remains that the president did not follow the law in trying to implement this.”

In the suit, the attorneys general argue the USDA’s Guidance is illegal because:

  • It was issued without providing the state and other stakeholders the opportunity for input as required by the Administrative Procedures Act.
  • The USDA premised its guidance on an obvious misreading and misapplication of the Supreme Court’s holding in Bostock v. Clayton County.
  • The Guidance imposes new and unlawful regulatory measures on state agencies and operators receiving federal financial assistance from the USDA. This will inevitably result in regulatory chaos that threatens essential nutritional services to some of the most vulnerable citizens.

A coalition of 26 attorneys general called on Biden to withdraw that guidance in a letter on June 14.

In that letter, they argue that the guidelines state the intent is to “provide direction to stay agencies and program operators regarding processing program complaints that allege discrimination on the basis of gender identity and sexual orientation in programs or activities receiving federal assistance.”

But, they argue, by “vastly expanding the concept of ‘discrimination on the basis of sex’ to include gender identity and sexual orientation, the guidance does more than offer direction.”

“It imposes new—and unlawful—regulatory measures on state agencies and operators receiving federal financial assistance from the USDA,” the letter states. “And the inevitable result is regulatory chaos that would threaten the effective provision of essential nutritional services to some of our most vulnerable citizens.”

The APA, the letter states, requires that the public be given notice and afforded the opportunity to comment when a government agency engages in substantive law or policymaking.

The National School Lunch Program serves nearly 30 million school children each day, many of whom rely on it for breakfast, lunch, or both, Wilson’s office says. Approximately 100,000 public and non-profit private schools and residential childcare institutions receive federal funding to provide subsidized free or reduced-price meals for qualifying children.

South Carolina joined the lawsuit, which was led by Tennessee Attorney General Herbert Slatery III and Indiana Attorney General Todd Rokita. Other states joining the suit are Alabama, Alaska, Arizona, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Dakota, Texas, Utah, Virginia, and West Virginia.

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