New Title IX: 37 Words in 1972; Now Over 400 Scary Pages Long

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Wendy McElroy
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A flare-up in the culture war has become an election issue and an August 16 ruling by the US Supreme Court (SCOTUS) guarantees it will not go away.

Title IX is a federal civil rights law protecting those who attend a school that receives federal funds against discrimination on the basis of sex. The intention of this 1972 law was to protect women against bias. Many changes to Title IX have occurred since then. On April 19 of this year, the Department of Education (DOE) issued a dramatically revised version of Title IX, with a planned activation date of August 1. Originally 37-words long, the new Title IX printed in the Federal Register takes over 400 pages of dense, triple-columned print.

The original language provides that no one will, “on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity” receiving federal funds. The last massive overhaul occurred in May 2020 under the watch of President Trump’s Secretary of Education Betsy DeVos and focused on ensuring the due process of the accused during the investigation and hearing of an alleged misconduct charge. The Trump administration’s Title IX was a notable achievement—one to which President Biden vowed to put a quick end. If enacted, the new version will fulfill Biden’s vow by returning Title IX to a “social justice” agenda. And, given how political ideology spills from colleges onto main street and into law, this clash is not merely a campus controversy; it has mainstream significance.

Fortunately, the current backlash is extreme. In early July, Judge John Broomes of the District of Kansas ruled that the DOE lacked authority to expand Title IX to include discrimination based on gender identity and that the new version was so “vague and over broad” as to chill speech on campus. A July 17 Inside Higher Ed article listed the affected institutions. It stated,

…more than 670 institutions across 50 states and territories are covered by the temporary injunction. The regulations were already on hold in 15 states, while another 11 are challenging the regulations in federal court. The list includes 364 colleges and universities in 26 states that aren’t currently suing the Biden administration over the regulations.

An earlier Inside Higher Ed (July 8) article made clear, “Broomes noted that the order doesn’t prevent a school or college from adopting new policies. But the Education Department can’t enforce the new Title IX rule or impose consequences for those that fail to comply.” Broomes’ ruling also extended to any school attended by members of Young America’s Foundation, Female Athletes United, or Moms for Liberty because these organizations joined the states in suing the DOE.

The Biden administration made an emergency application to SCOTUS to partially lift the court’s stays. On August 16, by a vote of 5-4, SCOTUS declined to do so while critical lawsuits proceeded. A lot is on the line. Depending on election results, this conflict could lead to the abolition of the DOE and a return of power over education to the states. In a June 24 interview, Donald Trump pledged to move the DOE “back to the states.” Suddenly, Title IX is part of the presidential race.

The federal Title IX blocked by SCOTUS is accused of being unconstitutional, unlawful, an overreach of administrative power, an attack on parental jurisdiction, an assumption of international authority by universities, a denial of due process to those accused of sexual misconduct, and the hyper-politicization of education.

Understanding the furor requires returning to the basics of the new Title IX. The basics are three provisions that expand the definition of sexual discrimination and its application. The provisions:

Rule 34 CFR §106.10 includes sexual orientation and “gender identity” in the definition of sexual discrimination that is applied throughout the measure;

• 106.2 defines a hostile environment harassment; and,
• 106.31 (a)(2) prohibits excluding individuals from currently sex-segregated spaces or activities if they identify with the relevant sex.

The new Title IX is called unconstitutional. One of the reasons: It violates the First Amendment by giving campus administrations authority to silence or compel speech by requiring the use of “correct” language, such as prescribed pronouns. Also, the law’s prohibition on speech is overly broad and could easily include arguments against the theory of gender identity itself.

The new Title IX is called an overreach because it both exceeds, and runs contrary to, the Administrative Procedure Act (APA) that governs the procedures of administrative law. Critics dispute the DOE’s authority to redefine terms like “sex” to include gender identity and to define a “hostile environment” to include expressing views that are critical of the concept of gender identity. They also point out that the DOE deprived interested persons of an opportunity to participate in the rulemaking. In other words, the new Title IX is unlawful under statute.

It also abrogates parental rights. In some states, children can switch genders while attending school without telling their parents; that is, they can identify with the opposite sex and assume a different name, pronoun, clothing, etc. Some school districts choose not to inform parents or guardians of such gender switches; some districts actively hide the fact. The proposed Title IX asserts, “nothing in these final regulations prevents a recipient from disclosing information about a minor child to their parent...” (emphasis added). Nevertheless, the new law also requires schools to update their gender identity policies and offers examples of state policies that mandate hiding a child’s chosen gender identity from parents.

The language on handling the sexual discrimination of American students studying abroad also seems contradictory and confusing. The revised Title IX states, “Because Title IX does not apply extraterritorially, it does not apply to conduct that occurs outside of the United States.” But almost immediately the text “clarifies”:

...a recipient does, however, have a responsibility to address a sex-based hostile environment...in the United States, even when some conduct alleged to be contributing to the hostile environment occurred...outside of the United States, including in a study abroad program.

The “clarification” seems to say that, if an hostile environment in the US is due to acts abroad, then the university has authority to judge the acts abroad. Again, ambiguity precludes a clear sense of meaning.

The denial of due process to those accused has elicited howls of protest as well. The concerns are well summarized by the abstract of a journal article posted at Stanford Law: “New Title IX Regs Radically Revamp Campus Disciplinary Proceedings – But is Due Process the First Casualty?” The abstract states:

Of particular concern are: The adoption of the “single-investigator” model option under which those investigating the allegations and initiating charges can also determine the accused’s ultimate factual guilt; the move to a lower default standard of proof for establishing violations; the removal of the accused’s right to a live hearing; and the elimination of the right to present expert witness testimony.

These components of the final regulations risk trading crucial due process protections and truth-seeking mechanisms for administrative efficiency. They also undermine the fundamental principle of justice that everyone, regardless of the accusation, deserves a fair and impartial hearing when the stakes are high.

A remarkable aspect of the SCOTUS decision offers hope that this weaponization of education could be doomed. Justices rarely reach a consensus on controversial issues. But their decision on Title IX noted that there was unanimous agreement on the issue of whether respondents were “entitled to interim relief” on three disputed provisions. The ultimate ruling of 5-4 resulted from the majority’s opinion that “the allegedly unlawful provisions are not readily severable from the remaining provisions”; the bill needed to be taken as a whole. And, so, implementation has been stayed in the states where lawsuits are proceeding. In other states, implementation has generally been delayed as educational institutions take a “wait-and-see” attitude before enacting the policies.

The revised Title IX is an unholy tangle, both legally and politically. Happily, resistance to it shows an increasing rejection of the social engineering of young people through so-called “education.” The battle is between social control and genuine diversity. It will be fought in public opinion and district courts until or unless it bumps upward again to SCOTUS. The process will be fast. The prospect of another Trump presidency has hastened the pace of many social justice reforms, and education has always been a priority target.