(The Center Square) – Montana Attorney General Austin Knudsen, leading a coalition of 15 Republican attorneys general, has called on the U.S. Department of Education (DOE) to cancel its plan to revise Title IX.
The DOE's plan to do so, they argue, appears to be an attempt by the federal government to infringe on parental rights in education, erode the rights of women’s and girls’ sports, and reverse existing guarantees for victims of sexual harassment and assault.
Title IX, which is part of the Education Amendments Act of 1972, states, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
In their 7-page letter to Assistant Secretary Catherine Lhamon of the Office of Civil Rights (OCR) in the U.S. Department of Education, they urge her to halt the department’s effort to alter Title IX and ask her to recuse herself from any involvement in the Title IX rulemaking process.
At issue is a plan to include gender identity in addition to biological sex as part of the regulation, and a “constitutional and regulatory mess created by OCR from 2011 to 2016” when Lhamon was the OCR Assistant Secretary. She “played a crucial role in creating” the constitutional and regulatory problem, which was resolved by changes made in 2020, they argue.
Based on Lhamon’s past statements and record, they argue, “there’s no possible way OCR or the Department can conduct the rulemaking process in accordance with the Administrative Procedure Act’s requirements for reasoned decision-making.”
“OCR didn’t merely put its thumb on the scale of justice under your leadership, it became a biased institution,” the AGs write. “Investigations were not an inquiry into discrete complaints, but instead fishing expeditions into every aspect of schools’ adjudication process and campus life.”
As a result of changes made under Lhamon, hundreds of successful lawsuits were filed against schools for denying basic due process. The Obama-era rule change also created a disproportionate number of expulsions and scholarship losses for Black male students, they said.
For this and other reasons, they asked Lhamon to recuse herself from the Title IX rulemaking process.
The 2020 Rule the Biden administration is seeking to change established clear legal obligations for schools to follow related to sexual harassment allegations, guidelines for a grievance process and remedies for victims. It provides guarantees to victims and accused students with “strong, clear procedural rights in a predictable, transparent process,” offers new protections and benefits for victims of sexual harassment and sexual assault, protects free speech and academic freedom, and clarifies an institution’s entitlement to a religious exemption.
The 2020 rule was the first time in history that regulations regarding sexual harassment under Title IX were codified into law. It also for the first time held public elementary and secondary schools accountable for sexual harassment, including sexual assault.
Yet Lhamon announced in December that new rule changes would be published this month. The new changes would ensure “that schools are providing students with educational environments free from discrimination in the form of sexual harassment,” she said. The AGs argue this is already happening.
She said the new rule would ensure “grievance procedures [are implemented] that provide for the fair, prompt, and equitable resolution of reports of sexual harassment and other sex discrimination,” which the AGs argue also already exists.
Lhamon said the changes will address “discrimination based on sex, including sexual orientation and gender identity, in educational environments.”
The AGs argue a new interpretation of Title IX to include gender identity would provide a way for the federal government to “improperly intrude into parental decision-making regarding the education and upbringing of their children.”
“An interpretation of Title IX that supports such radical positions runs contrary to the role of the Department of Education, the text of Title IX, and parents’ constitutional right to decide what is in the best interests of their children,” they wrote.
“Modifying or eliminating the 2020 Rule now will only add to the uncertainty and regulatory burden on schools, parents, teachers, and students across America,” they said.
One of Title IX’s crucial purposes is to protect athletic opportunities for women and girls, the AGs argue. “Adding gender identity to the definition of ‘sex’ in Title IX would have a detrimental effect on the great strides made over the last 50 years to create equal athletic opportunity,” they wrote. “Several of our states have enacted legislation to protect athletic opportunities for women by prohibiting biological males from competing in female athletics. Those laws would undoubtedly conflict with the Department’s intended rulemaking.”
For example, last year, the Montana Legislature passed the Save Women’s Sports Act, which requires interscholastic athletes to participate under sex assigned at birth. The department’s intended rulemaking would “undoubtedly conflict” with Montana’s law, Knudsen said.
In light of this, Knudsen says the AGs are prepared to sue “to uphold Title IX’s plain meaning and safeguard the integrity of women’s sports.”