by Mitch Kokai
Senior Political Analyst, John Locke Foundation
In June, Education Secretary Miguel Cardona proposed rewriting Title IX to better reflect fashions in progressive ideology. Owing to the foresight of his predecessor, Betsy DeVos, the department was required to open a two-month window for public comment. That period closed late last week after over 200,000 comments. Many of the comments expressed alarm — warranted alarm.
First, in the new regulations, the department seeks to “define sex-based harassment.” This is an expansion of the Supreme Court’s narrow definition of discriminatory sexual harassment — that which is “so severe, pervasive, and objectively offensive that it effectively denies a person equal access” — to apply to all “unwelcome sex-based conduct.” The Court set a high bar, but the department’s new definition would cover everything from offensive jokes to refusing to use a student’s preferred pronouns.
Second, the department would “clarify obligations related to grievance procedures.” This involves gutting Title IX of its due-process protections: removing the requirement for cross-examination and the need to make accused students aware of the evidence against them; and reinstating Obama’s notorious “single-investigator model,” where a lone administrator plays detective, jury, and judge, all without a formal hearing.
Third, as concerns women and girls — the very people Title IX was designed to help — the new regulations would “articulate the Department’s understanding that sex discrimination includes discrimination on the basis of gender identity.” Redefining sex to include gender identity would eradicate female-only sports and spaces in every federally funded school, kindergarten through college. Countless young women and girls would lose out on opportunities, scholarships, and even their basic rights to privacy and safety.
Fourth, in keeping with a deeply sinister progressive trend, the department would demand that schools “respond to a hostile environment based on sex” even if the conduct in question occurs “outside [a school’s] education program or activity.”