It’s up to the legislative branch, not bureaucrats, to decide whether Title IX of the Higher Education Act actually applies to gender identity, Education Secretary Betsy DeVos said Thursday afternoon, after a day of meetings with Title IX stakeholders at the Department of Education.
“There has been a lack of clarity,” DeVos told reporters Thursday afternoon. “This department is not going to make laws. It’s high time for Congress to look at a law that law that was passed in 1972 and address these issues and finally speak to them and clarify them.”
This means she will defer to Congress to interpret and implement Title IX, an anti-sex discrimination statute passed by Congress in the 1970s—but reinterpreted by the Obama administration in repeated circumventions of Congress’s authority.
Title IX reads: “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.”
Guidance documents issued by the Education Department under Obama redefined the “sex” in sex discrimination to include gender identity. A May 2016 Title IX guidance document declared: “This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” In August 2016, a federal judge ruled against the guidance—which the Trump administration rescinded shortly after inauguration, causing SCOTUS to pass on a landmark case poised to decide the interpretation of Title IX.
The definition of “sex” also determines the future of 2011’s so-called “Dear Colleague Letter,” which similarly stretched the authority of anti-discrimination law to mandate a deeply flawed framework for sexual assault adjudication on college and university campuses. Definitional calisthenics were a key factor in both expansions of Title IX’s authority under the “pen and phone” regime.
After DeVos’s Title IX Summit—a series of three “listening sessions”—reporters filed into a conference room, where DeVos called on Congress to clarify the meaning of the pivotal word “sex” in Title IX in answer to a question from THE WEEKLY STANDARD. While not a policy announcement per se (we were told to expect none), a call to Congress suggests recommitment to the rule of law and a disavowal of government by bureaucracy. Plus, Congressional authority will likely limit the statutorily unfounded scope of Title IX asserted under Obama’s Education Department.
Protesters’ ire over a controversial quote from Candice Jackson—the acting head of the Office for Civil Rights who arranged the Title IX Summit—overshadowed an otherwise productive Thursday in education land. Jackson was quoted in the New York Times the day before characterizing the vast majority of Title IX investigations as he-said-she-said cases sprung from drunken hookups. She was quick to apologize for the “flippant” comments—but critics were quicker to call her apology insufficient. Democratic lawmakers, union bosses and campus sexual assault activists seized on the controversy and protested outside the department.
Meanwhile, DeVos met with campus sexual assault victims and their advocates; then she heard from students unfairly accused under Title IX and those who defend their equal rights to a fair adjudicative process; and her third meeting included Title IX coordinators and university administrators who’ve spent six years scrambling to implement the previous administration’s rules fairly and effectively. As THE WEEKLY STANDARD reported Thursday morning, legal advocates from opposite sides of the campus sexual assault adjudication field agree that a more balanced process—what Jackson seeks to deliver—will benefit all involved.
“A system without due process protections ultimately serves no one in the end,” DeVos said.
But Secretary DeVos’s call on Congress to rein in interpretations of Title IX’s essential noun would deliver more meaningful results. Guidance documents enforced by former OCR head Catherine Lhamon and her predecessor under President Obama claimed to “clarify” Title IX’s true intent. But because they sidestepped the legislative process, and even the notice-and-comment required for agency rules, OCR’s old guidances aren’t law at all. They might have been politically motivated, ill-considered in the absence of a legislative process that would have scrutinized their effects; and counterproductive in practice. Fortunately, they’re also impermanent. DeVos’s call for Congress to assert its authority—over a law passed by Congress in 1972—shows she’s more serious about Title IX than her predecessor. She’s asking for a lasting solution to its abuses.
