by Steve Abramowicz
Enacted as part of the Education Amendments of 1972, Title IX provides that:
No person in the United States shall, 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 financial assistance.
Seven years later in its opinion Cannon v. University of Chicago, the Supreme Court explained that Title IX is to “avoid the use of Federal resources to support discriminatory practices” and to “provide individual citizens effective protection against those practices.”
In Davis. v. Monroe Country Board of Education (1999), the Clinton administration expanded Title IX to prohibit “conduct of a sexual nature” that creates a hostile environment. The Supreme Court narrowed it to stop student sexual harassment in schools if the schools had “actual knowledge” of harassment that is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”
In 2011, a “Dear Colleague Letter” (DCL) that required schools provide access to bathrooms, showers, and dorm rooms based on gender identity, rather than biological sex was introduced by the Obama Education Department. It defined sexual harassment as “unwelcome conduct of a sexual nature”; required only that the alleged harassment potentially “interfere with or limit” access, rather than “deprive” the victim of access creating a “single-inquisitor” model where the investigator, prosecutor, and hearing officer could be the same person, and reduced the accused’s rights to a hearing to confront his accuser.
Last year, the Biden Education Department issued a first draft of new rules and a related “Dear Educator” letter to restore Obama’s DCL by forcing schools to permit transgenders to participate in girls’ sports and use girls’ facilities. Also, it expanded the definition of sexual harassment and eliminated any meaningful opportunity for students or staff to defend themselves. Then, in August, the Education Department formally proposed a rule that goes further.
The proposed rule again defines “sex” to include gender identity and does not require notification to parents of a child’s gender choice, replaces sexual “harassment” with the much more broadly defined term “discrimination,” which includes “offensive speech.” The prohibitions on “offensive speech” are to prevent debate about transgenders and to require adoption of pronouns like “they,” and anti-women derisions like “menstruating persons” or “birthing persons.” The rule prohibits “sex stereotypes.” The rule permits university administrators to police all speech.
For the first time, the rule governs conduct undertaken by members of the university community outside of the education program and outside of the United States. It expands the definition of discrimination to include all “unwelcome sex-based conduct,” restores strict liability, and eliminates the Davis requirement that the discrimination deny equal access to education.
The rule also adopts and strengthens the DCL’s single-inquisitor model repeatedly rejected by courts and rescinds the Trump requirements that the accused be permitted to confront his accuser or cross-examine witnesses. The rule eliminates the existing reminder that colleges must respect the rights of accused students.
Need more? The rule pre-empts state and local laws and, except for unionized teachers, reduces the standard of proof to a mere preponderance of the evidence, even as it makes it near impossible for an accused to defend himself.
700 lawsuits have challenged the DCL, most resulted in decisions and settlements in favor of the challengers. Twenty states intervened in Tennessee v. U.S. Department of Education, challenging the administration’s right through its Dear Educator Letter to force schools to follow gender identification, rather than biological sex. Federal Judge Charles E. Atchley issued a preliminary injunction that prohibits the administration from enforcing its rules against the plaintiffs. Federal courts have held that requiring faculty members to adopt progressive terminology (such as “they” pronoun) violates their First Amendment rights and academic freedom.
Biden’s proposed rule is radical, converting free speech and insensitive dating practices into actionable offenses. Only in a totalitarian country—or the Obama and Biden administrations—are defendants subjected to the single-inquisitor model and deprived of the right to confront their accusers and defend themselves. Given that the less extreme DCL has been repeatedly struck down, the Biden administration knows its rules are contrary to the purpose of Title IX, violate the Cannon and Davis standards, the First Amendment, the Fifth Amendment, and are contrary to every due process principle on which America is based.
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Steve Abramowicz is the host of the Mill Creek View™ Tennessee podcast and owner of the Mill Creek View and Snohomish View newspapers in Washington State.