Through the Department of Education’s proposed changes to Title IX of the Civil Rights Act, the Biden Administration has set out to redefine sex and reverse decades of progress our nation has made toward equality, open discourse, due process, and parental rights. Southeastern Legal Foundation has taken a strong stand against these illegal and unconstitutional changes, submitting a public comment and joining in coalition letters in opposition. If the Biden Administration’s proposed changes to Title IX become law, the federal government will have the power to silence, persecute, and punish any K-12 student, college student, teacher, or administrator it disagrees with.
SLF explained in its public comment that under the new rule, the Department seeks to expand the definition of sex to include gender identity, sex stereotypes, and sex characteristics. The rule lowers the standard of harassment to only require a showing that conduct is severe or pervasive, instead of severe, pervasive, and objectively offensive. It requires schools receiving federal funds to investigate claims of harassment subjectively from an accuser’s point of view, erasing due process rights for accused parties. It also forces every staff member on school grounds to report any potential instance of discrimination—whether or not discrimination actually occurred. The rule instructs schools to develop more tools to implement this rule and report and investigate discrimination, funneling even more money to bureaucratic administrators.
Not only does this pose serious due process concerns, but it also puts students’ freedom of speech at risk. Offensive speech has long been protected by the Constitution. But under the proposed rule, offensive speech—or speech that individuals perceive to be offensive—will no longer be protected.
That means students can be punished for complaining about sharing bathrooms with members of another sex, misgendering other students, and holding views that do not conform to what the Biden Administration declares to be orthodox. And because the new rule requires that even more resources be devoted to reporting discrimination and harassment, students will falsely report one another for alleged harassment, just as they falsely report their peers for bias incidents and COVID violations. Title IX coordinators, whose sole purpose is to find instances of discrimination and harassment, will in turn be incentivized to conclude that discrimination occurred. It is nothing less than an inquisition into anyone who won’t conform with the Biden Administration’s woke agenda. The ultimate goal is to silence conservative students.
In addition to these constitutional concerns, the proposed rule raises legal concerns. As SLF explained in its comment, the rule is arbitrary and capricious, meaning the Department has not adequately justified why it is changing well settled law. Federal law also requires executive agencies to assess whether rules and regulations will strengthen or erode parental rights in education. The Department has not conducted any assessment to make this required determination.