Our friends at the Title IX Coalition and SAVE have alerted us that the Attorneys General from 18 states have submitted comments to the U.S. Department of Education (DOE), in
response to a proposed Title IX regulation that has stimulated widespread debate and opposition from conservatives and civil liberties advocates. The Attorneys’ General comments represent a tutorial on the meaning and application of First and Fourteenth Amendment guarantees in the higher education setting.
1. The first letter, signed by the Attorneys General of MT, AL, AR, GA, IN, KS, KY, LA, MS, NE, OK, SC, SD, TN, TX, UT, and VA, first analyzes the DOE proposal to vastly expand the definition of sexual harassment. This change would “chill the free exchange of ideas,” which would “intimidate students and faculty into keeping quiet on controversial issues.”
The letter then deplores the rule’s plan to remove or modify important due process safeguards, including advance disclosure of evidence, impartial investigations, key written notice provisions, and live hearings. Cumulatively, these changes are “reminiscent of Star Chambers” that “stacked the deck against accused students.” The 37-page letter concludes, “In many instances, moreover, the Department’s Proposed Rule conflicts with the text, purpose, and longstanding interpretation of Title IX.”
2. The second letter charges the draft regulation lacks a clear statement of authority from Congress, and highlights the proposed rule’s unlawful attempt to preempt state laws that protect the rights of females. Signed by the Attorneys General of IN, AL, AZ, AR, GA, KS, KY, LA, MS, MT, NE, OK, SC, SD, TN, TX, UT, VA, and WV, the letter concludes simply, “The Proposed Rule threatens to destroy Title IX.”
3. Attorney General Ken Paxton of Texas flatly charges the Biden proposal will “destroy constitutional rights.” (4) AG Paxton’s letter to the DOE concludes tartly, “the Proposed Rule promises to repeat the mistakes of the Department’s ill-advised 2011 Dear Colleague Letter.”
All three letters sharply criticize the DOE plan to expand the definition of “sex” to include “gender identity.” Noting that the draft policy lacks definitions of “sex” or “gender identity,” the first letter notes that the Department of Education “simply waves its hand and—by regulatory fiat—alters a fundamental term, as if its novel definition was axiomatic.”
The first letter also highlights the role of Catherine Lhamon, who served as the DOE Assistant Secretary for Civil Rights from 2013 to 2017 and was re-appointed to the same position in 2021. During the earlier period, the letter notes that Lhamon played the lead role in creating a “constitutional and regulatory mess.”
Key Points From The Letters:
Assistant Secretary for Civil Rights Catherine Lhamon must recuse herself from the rule making process because she presided over the creations of “an expansive definition of sexual harassment that included “verbal conduct” (i.e., speech) such as “making sexual comments, jokes or gestures,” “spreading sexual rumors,” and “creating e-mails or Web sites of a sexual nature.” The environment became so precarious that Harvard Law School professor Jeannie Suk Gersen wrote in 2014 that law school faculty were increasingly reluctant to teach rape law for fear of offending or upsetting their students. When the University of Montana sensibly incorporated the Supreme Court’s definition of sexual harassment (discriminatory conduct “that is so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities”) into its sexual harassment policy, OCR objected. It insisted in 2013 that the university establish policies to “encourage students to report sexual harassment early, before such conduct becomes severe or pervasive, so that it can take steps to prevent the harassment from creating a hostile environment.” The broad definition of sexual harassment was a so-called “national blueprint” for schools16 and led OCR to regulate conduct that was not covered under Title IX.” (Read the letter in its entirety through this link.)
…the Biden Administration’s attempt to change the focus and meaning of Title IX is an attack on the rights of girls and women and will make them less safe and cause them to lose vital opportunities, we will fight your proposed changes to Title IX with every available tool in our arsenal.
The Women’s Sports Policy Working Group, which includes female athletic champions such as Donna De Varona, Martina Navratilova, and Nancy Hogshead-Makar, recognizes that the protection of the girls’ and women’s category in sport is vital, saying:
If sports were not sex-segregated, female athletes would rarely be seen in finals or on victory podiums . . .. Girls and women learn the benefits of teamwork in pursuit of conference, state and national championships; the confidence and self-esteem that flows from competent performance of physical skills; the lifechanging power of competing against the best and standing on the podium; confidence borne of testing the limits of strength, speed, skill and reaction time; and the power of personal achievement and public recognition when setting school, meet and other records. And as sports double as an academic and social tool, these lessons and benefits reverberate well beyond the playing field throughout the lives of all female athletes.
The Biden Administration’s Title IX revisions, however, will end sex-based protections for biological women in sports which threatens the safety of female athletes and will lead directly to the demise of women’s sports and regression in the progress of women generally. (Read the letter in its entirety through this link.)
Texas OAG opposes the Department’s efforts to revive the failures of the [Obama administration's] 2011 Dear Colleague Letter. Experience has shown that the combination of heightened responsibility, along with a deemphasis on individual rights, forces academic institutions that receive federal funds into a no win situation in which they risk civil rights lawsuits and litigation expenses if they follow the Department’s guidance and invite federal or private enforcement actions if they do not. The consequence is that many academic institutions will be pressured into hyper-policing controversial speech as well as removing procedures that helped guarantee fair process to students accused of discrimination or harassment should the Department proceed with the Proposed Rule.
Like the [Obama administration's] 2011 Dear Colleague Letter, the Proposed Rule will bully academic institutions to violate their students’ constitutional rights as a way of avoiding accusations of non-compliance. (Read the letter in its entirety through this link.)
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Republican Attorneys General
Biden Education Department
Title IX Coalition
Texas AG Ken Paxton