In 1972, President Nixon signed Title IX. The statute famously bars sex discrimination by entities who receive federal funds, particularly schools. For 50 years, Americans have lived under the expansive but short mandate of Title IX—”No person in the United States shall, on the basis of sex, be … subjected to discrimination under any education program or activity receiving Federal financial assistance.” The provision ushered in the rise of women’s sports throughout the country, and a host of other activities in public schools and universities across the country.
Over the years, the reach of Title IX has expanded. Beyond sports, Title IX addresses how schools can host single-sex clubs and classrooms, how schools administer sex-based scholarships, and even how schools respond to incidents of sexual harassment. Unfortunately, until 2017, the Department of Education opted to “rule by letter” in most contexts, simply issued guidance documents on how schools must enforce Title IX.
That ended under President Trump.
With respect to sexual harassment, in 2020, the U.S. Department of Education offered clear rules on how to balance the need to respond forcefully with the protections of due process for the accused. Developed using appropriate notice to the public and after receiving over 124,000 public comments, the 2020 regulations balance the interests of ensuring that schools respond to sexual harassment, while also ensuring that students, faculty, and others are guaranteed due process rights prior to any disciplinary measures. They also protect free speech by ensuring that statements cannot be construed as sex discrimination merely because someone finds them offensive.
But now, the Biden-Harris Administration’s Proposed Rule would upset that balance, and harm the rights of those accused of sexual harassment. Mountain States Legal Foundation, which has long been involved in the fight for equal protection and free speech, has filed a comment objecting to the proposed regulations.
Too Far and Too Wide
Currently, Title IX places an obligation on schools to respond to unwelcome sex-based conduct that is within their knowledge and control. In other words, if a school doesn’t know or can’t control the actions that occur between students, like many incidents off of campus, it can’t be held responsible for those actions.
But the Proposed Rule places an outsized burden on schools to address a “sex-based hostile environment,” regardless of how that hostility developed. In one example our comment mentions, two swimmers might both be barred from competing at a major college swim meet because they engaged in activity when they were in high school together, or simply know each other from around the neighborhood.
By defining harassment so broadly, the Department’s proposal would have schools devote enormous resources to controlling more and more of their student’s behavior, speech, and thought. The proposed rule not only impedes the academic work of both public and private schools and universities, but incentivizes over-zealous civil rights officers to target students even when they’re not on campus, or even outside of the United States.
Evidence for Me but Not for Thee
Under current Title IX regulations, schools must abide by constitutional due process limitations, which in this context means that both parties in a sexual harassment claim should have access to evidence. This principle is a bedrock of American courtroom proceedings, and when the academic future of young men and women is on the line, it should be upheld in the university environment.
The Proposed Rule, however, does not require schools to provide the evidence, but only a description of the evidence, and only requires that the parties be given that description orally. Not to mention, the school itself is allowed to deem what evidence is relevant to describe, allowing a school to make its own decision about what to give students. And unless you have a clairvoyant mind and photographic memory, you will have an almost impossible time figuring out who said and did what, when, and where.
Cross-Examination Crossed Out
The current Title IX regulations require that colleges provide for cross-examination in every hearing related to an allegation of sexual harassment. But the Proposed Rule would make having a hearing entirely optional, meaning there would be no chance for any cross-examination at all. Instead, the Proposed Rule would let a single person serve as judge, jury, and executioner for any allegation of sexual harassment. A “single investigator” model is exactly what the current regulations are designed to prevent.
And that model goes against our fundamental understanding of due process. As the 6th Circuit Court of Appeals said in Doe v. Baum (2018), “Due process requires cross-examination… because it is ‘the greatest legal engine ever invented’ for uncovering the truth.” Whether you went to law school or you’ve seen an episode of Law and Order, you know that unless both parties are allowed to question the evidence—meaning the testimony of the accused and accuser included—it can be impossible for an impartial judge or jury to decide the validity of any one claim.
If such a standard is what we require in a courtroom, would it not make sense to require such rigor in our schools? Students have a “substantial interest at stake when it comes to school disciplinary hearings for sexual misconduct,” Baum said. The current rule in place upholds those interests—but the Proposed Rule arbitrarily and capriciously eliminates them.
Chilling Speech is Censorship
The current rule requires schools to respond to unwelcome sex-based conduct if it is severe, pervasive, and objectively offensive to a reasonable person. But the Proposed Rule would lower the standard for harassment, making subjective feelings the barometer of whether something counts as sexual harassment.
If schools are forced to prohibit all conduct that is subjectively seen as harassment, there can be no doubt that free speech is on the chopping block. With the prevalence of safe spaces, trigger warnings, and “microaggression” trainings on college campuses, speech is only going to be chilled even further if Title IX’s Proposed Rule is finalized as written. One question MSLF asked the Department of Education to clarify was: how does subjecting students to what will become federally mandated censorship create productive members of society? This is an especially important question for college students under Title IX’s regime.
Without robust discussion on college campuses, students will be unfit for the harsh realities of real life. Most importantly, controlling language, in and of itself, does not truly halt discrimination on the basis of sex and violates the First Amendment.
Compelled Speech is Even Worse
Speech will be compelled through mandated pronoun policies—compelling the usage of non-biological pronouns to address individuals. Even though the Department is trying to expand discrimination “on the basis of sex” to encompass gender identity, it is not allowed to run afoul of the First Amendment. When Title IX was written, its drafters contemplated “sex” as a binary, unchangeable characteristic. Claiming that sex is anything but that defies congressional authority.
All that aside, forcing students to affirm the subjective beliefs of others—with no limitation on what a gender is or how many gender identities there may be—violates the First Amendment. Citizens are not puppets of the government, and cannot be forced to espouse the government’s ideology. We said in our comment, “If Congress wanted the Department to interpret the word “sex” to include all forms of gender identity, it would have said as much.”
