by Teresa R. Manning
American federalism is alive and well after all. On April 19, the Biden Education Department announced its disastrous new Title IX rule that guts due process and imposes gender ideology in educational institutions. Within days, however, officials from eight states publicly instructed their schools to ignore it. Then, within a week, 16 states sued the administration alongside nonprofit groups such as Parents Defending Education and several Louisiana school districts. Since then, the number of states suing has climbed to 26—more than half the states in the nation. Their court filings say the rule violates not only the United States Constitution and the federal Administrative Procedures Act but also Title IX itself. Game on!
While feminists weaponized Title IX to their hearts’ content in the Obama years, alleging a phony campus rape crisis to rationalize their kangaroo courts and to silence those questioning their power, the world is a different place under Biden. Feminists have met their match in American parents and and in red states—especially their education officials.
“In Oklahoma, we don’t bend to the senseless wheel of Biden and his posse,” declared Ryan Walters, Oklahoma’s State Superintendent of Public Instruction. “It’s time for every state leader to stand up and say, ‘Enough!'” South Carolina Education Superintendent Ellen Weaver obliged: “This is not fairness. It’s Fiat.” Weaver then explained the rule would force people not only to pretend that men are women—for example, in bathrooms, locker rooms and in sports, thereby ruining women’s athletics—but would also force people to use pronouns that gender activists demand, bolstering their delusions. This is compelled speech in violation of the First Amendment and the states are not having it.
How did we get here?
Title IX is the 1972 Congressional ban on sex discrimination in federally funded education. Schools receiving federal money agree to comply with Title IX—which is to say, they agree to not discriminate on the basis of sex. Schools can lose federal money if they are found noncompliant—a death sentence for many smaller institutions.
In 1972, the law seemed benign: Only 37 words, it was called an equal opportunity law that ensured no one would be denied educational benefits “on the basis of sex.”
But feminists get an inch and take a mile. Soon, Education Department bureaucrats stretched Title IX to mandate identical funding of women’s sports, regardless of female interest, decimating some men’s teams. They then expanded it to sexual harassment, the definition of which seemed to change year over year. Eventually, “sexual harassment” included any conduct, including speech, that might cause subjective offense. Suddenly, “You look nice today” became a federal offense that campus Title IX bureaucrats could investigate and expel students for. Conveniently, they’d tell their schools that such discipline was required by Title IX.
In reality, bureaucrats on campus and in DC—especially in Democrat administrations—work hand in glove to re-write federal law and then school policies, all to fit their ideological goals, not to faithfully execute the law. In DC, this is called executive overreach, where civil servants tinker with and then redefine terms, often to mean the opposite of common understanding. Thus, the new Biden rule says that the word “sex” from the original 1972 statute now means “gender ideology.” This means that a man claiming to be a woman can now say that Title IX not only protects his fantasies but forces everyone else to go along. In fact, Biden education officials have already enforced Title IX as if this were the case, according to a 2023 investigation of California’s Taft College. This is yet more executive overreach, hopefully known to the 26 states now suing the administration.
The rule’s attack on due process is just as egregious. In the Obama administration, federal and campus bureaucrats conspired to apply Title IX to sexual misconduct as determined by one campus official who would, alone, serve as police, judge and jury in deciding who was a sex offender. This was called the “single investigator model.” But one person serving in multiple roles this way is already an obvious due process violation. The situation was the worst on campus since Title IX staff are already so heavily ideological. According to the findings of the 2020 Report on Title IX by the National Association of Scholars, most administrators surveyed came from politicized disciplines such as Women’s Studies or Gender Studies. At the same time, they have little to no legal training or professional experience in court. This means they’re grossly unqualified to handle allegations of serious—basically criminal—offenses where due process protection is most needed.
Yet, unbelievably, the Biden rule returns to the single investigator model, which it now calls the “individual meeting method.” By whatever name, it’s a blank check to the very people who created campus kangaroo courts in the first place.
In the end, bureaucrats in DC and on campus comprise an unholy alliance ready to trash due process, ruin women’s sports, and indulge sexual fetishes to the point of violating Americans’ First Amendment free speech rights.
Obviously, Congress needs to step in here. Hearings should immediately be held to grill Biden’s Title IX Czar, Catherine Lhamon, on her misunderstanding of Title IX’s original purpose, which was, innocently enough, simply equal opportunity in education. Lhamon’s record is already badly checkered, as she held this same position in the Obama years, when hundreds of students ended up successfully suing their schools for due process violations that her Office for Civil Rights (“OCR”) invited with a highly controversial Dear Colleague Letter it enforced—even though that letter was not even law.
Congress should also immediately reduce the funding of Lhamon’s OCR and refuse to fund the enforcement of the Biden rule. It can also reject the rule under its powers in the Congressional Review Act. Additionally, one hopes that the courts will enjoin the rule from taking effect, now scheduled for August 1.
But in the absence of this much-needed Congressional oversight, the real resistance appears to be coming from outside the Beltway, where regular Americans live and where sound school and social policy have historically come from the states. Thankfully, they’re leading a happy Title IX revolt.
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Teresa R. Manning is the policy director at the National Association of Scholars and a former law professor at Scalia Law School, George Mason University.
Photo “Our Bodies Our Sports Rally” by Our Bodies Our Sports.
