CounterCurrent: Week of 9/5
Last week, a whopping 20 states sued the Department of Education (ED) over its June interpretation of Title IX. The group, led by Tennessee, alleges that ED’s interpretation “runs afoul of federal law, regulatory processes, and the Constitution.” This is but the latest skirmish in the years-long Title IX war that has consumed much of education discourse and policy-making during both the Trump and Biden administrations.
As we know, every new president attempts to undo his predecessor’s policies. The Obama administration undid the Bush administration; Trump undid Obama; and now, Biden is undoing Trump. Within the realm of Title IX—the federal law prohibiting sex discrimination in schools receiving federal funds—perhaps the most poignant symbol of this undoing was President Biden’s nomination of Catherine Lhamon to serve as Assistant Secretary of the Office for Civil Rights. Lhamon held this position during the Obama administration, when she implemented the now-infamous 2011 Dear Colleague Letter. Thankfully, her nomination failed the senate committee vote last month, sparing countless American students from Lhamon’s unjust policies.
But the Biden administration is not only concerned with undoing Trump’s education policies and reverting to Obama-era regulations. Today’s ED, under the command of Secretary Miguel Cardona, is taking things a step further (or two, or three, depending on who you ask). This includes promises of widespread student debt forgiveness, a full-on embrace of DEI and antiracism, and, most recently, a fundamental redefinition of Title IX.
In June, ED expanded Title IX’s ban of sex discrimination to include discrmination based on “sexual orientation” and “gender identity.” This goes beyond the mere misapplication of Title IX, such as when schools use the law to adjudicate sexual assault cases independent of law enforcement. Rather, it’s a wholesale transformation of the law pulled out of thin air. What sexual orientation and gender identity discrimination even mean, as well as why they should be governed by Title IX rather than a separate law, is anyone’s guess. This appears to be nothing more than ED twisting the law to serve its own ideological ends, and so the 20 states’ lawsuit is most certainly in order.
As reported by Jeremy Bauer-Wolf of Higher Ed Dive, the lawsuit takes issue with three aspects of ED’s new interpretation:
- “They are arguing the department did not pursue proper regulatory procedures when it announced its reading of Title IX in June.”
- “The agency also did not adequately justify the shift in policy, the states allege.”
- “The states also contend the department's actions infringe on part of the Constitution that bars Congress from using its spending powers to force states to adopt federal rules as their own. … they said the department is violating First and Tenth Amendment rights.”
If the new Title IX remains in effect, it will only hurt women—the very group it was intended to benefit. Women’s colleges, sports, and sororities will now be opened to biological men for fear of alleged “gender identity” discrimination. Female professors and students who express support for a traditional view of marriage may be subject to institutional discipline. Worst of all, ED has opened the door to “rule by letter,” a favorite tool of the Obama administration, and to issuing any fanciful interpretation of existing law it wishes—that is, unless this legal challenge succeeds and the new re-reading of Title IX is struck down in court.
CounterCurrent is the National Association of Scholars’ weekly newsletter, written by Communications & Research Associate David Acevedo. To subscribe, update your email preferences here.
Image: Hunters Race, Public Domain