Biden and the progressives are using the Title IX regulatory process as a vehicle for radical cultural and social change in American society.
Biden and the progressives are using the Title IX regulatory process as a vehicle for radical cultural and social change in American society.
I n pop culture and in life, good sequels tend to be the exception, not the rule. And so it is with federal regulations.
Earlier this month, President Biden’s Education Department proposed new Title IX regulations. The new regulations are meant to counter the groundbreaking regulations promulgated in 2020 by then–secretary of education Betsy DeVos. Currently the law of the land until ED accepts and considers public comments and publishes final regulations (likely to occur in 2023), the DeVos regulations include a slew of critically important reforms. For starters, unlike the prior regime enforced by the Obama administration, the DeVos regulations let educational institutions know exactly what the law requires when responding to complaints of sexual harassment. They also direct schools to provide students suffering from sexual harassment with supportive measures if requested, even if the student doesn’t want to file a formal Title IX complaint.
Of great consequence to free speech and academic freedom in higher education, the DeVos regulations also provide a clear definition of sexual harassment based on Supreme Court case law. No more are course readings, academic debate, or an idle comment in class the basis of discipline under Title IX’s sexual-harassment regime. The regulations also prohibit the “single investigator” model, where a single Title IX coordinator acts as the Grand Inquisitor, taking on the roles of police, prosecutor, judge, and jury to investigate, hear, and decide complaints of sexual harassment. To ensure fairness in Title IX proceedings, the DeVos regulations mandate basic due-process protections, such as access for accused students to evidence developed in the investigation, the right to an adviser during any proceedings, and, for postsecondary institutions, live hearings with cross-examination by each party’s adviser. In existence for barely two years, the DeVos regulations balance the needs of students suffering from sexual harassment with those accused of such conduct. They are watershed reforms.
Naturally, Biden and the hard Left want to kill these reforms. But it’s important to understand what’s really at play here. Biden and the progressives are using the Title IX regulatory process as a vehicle for radical cultural and social change in American society. By commandeering Title IX, progressives seek to force all educational institutions that receive federal funds to heed their ideological agenda on issues of gender identity, family, free speech, religious liberty, and abortion. Although it is no secret that many educational institutions are already working to this end, the Biden regulations, if finalized, would give these efforts the force of law.
It’s hard to overstate the profoundly militant nature of Biden’s proposed regulations and how they mangle Title IX, a law expressly meant to protect educational opportunities, particularly in athletics, for women and girls based on their biological sex. Such a mutation was unimaginable in 1972, when Congress passed Title IX. But the proposed Biden regulations have at least a dozen dirty defects. Four in particular demonstrate how Biden serves his leftist ideological masters.
First, Biden wants to change the meaning of sex by expanding the scope of “discrimination on the basis of sex” under Title IX to include discrimination on the basis of “gender identity.” This change will require schools, colleges, and universities to allow biological males who identify as females to compete in women’s and girls’ sports and K–12 schools to affirm a child’s gender identity regardless of biological sex, without requiring the approval of or notification to the child’s parents. Female athletes and parents are totally sidelined under the Biden proposal.
Second, Biden seeks to widen the definition of sex-based harassment under Title IX so broadly that it will require school officials to police and punish the use of pronouns and allow colleges and universities to twist Title IX into a de facto campus speech code that cancels debate, shuts down free speech and classroom discussion, and severely erodes academic freedom.
Third, Biden wants to turn the Title IX coordinators into campus commissars by forcing them to monitor day and night the conduct and speech of students, faculty, and staff while constantly acting as roving patrolmen looking for violations. Rather than simply allow for the Title IX coordinator to receive and act on complaints of sexual harassment filed by persons alleging violations of Title IX, Biden’s Stasi-like regulations also turn nearly every school employee (except certain defined “confidential employees”) into an informant, as it requires them to notify the coordinator when that employee has information about conduct that “may” constitute discrimination on the basis of sex (and also gender identity, sexual orientation, sexual characteristics, or sexual stereotyping).
Finally, in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, Biden is arguably laying the groundwork to argue that abortion is a civil right under Title IX. Biden’s regulations direct schools to make “reasonable modifications for students because of pregnancy or related conditions.” There is nothing in the text of the proposed regulations that prevents ED at some future date from forcing institutions to provide abortion counseling and services to a student as a “reasonable modification” “because of pregnancy or related conditions.” If nothing else, this gap in the regulations muddies the waters on this issue and make them ripe for litigation by progressive groups.
The next conservative president will certainly direct the Education Department to revamp Biden’s final regulations under Title IX. With Biden’s changes coming so soon after the DeVos reforms and a future administration likely to undo Biden’s changes, we have entered into an era of ping-pong rulemaking under Title IX. This game will never end because these disputes are no longer disagreements over education law and policy but rather fundamental cultural conflicts about the nature of the individual, family, society, liberty, and freedom. The only way to resolve this conflict conclusively is for Congress to make permanent statutory changes to Title IX that will require the federal government to protect women’s and girls’ sports, parental rights, and religious liberty and to guarantee due process, free speech, and academic freedom on campus while taking Title IX out of the abortion debate. Whiplash rulemaking won’t cut it anymore. Otherwise, it’ll be bad sequels as far as the eye can see.