Attorneys General School the DOE on Meaning of ‘Free Speech,’ ‘Due Process,’ and ‘Constitutional Rights’

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Rebecca Stewart: 513-479-3335

Attorneys General School the DOE on Meaning of ‘Free Speech,’ ‘Due Process,’ and ‘Constitutional Rights’

WASHINGTON / September 19, 2022 – The Attorneys General from 18 states have submitted comments to the U.S. Department of Education (DOE), in response to a proposed Title IX regulation that has stimulated widespread debate and opposition (1). The Attorneys’ General comments represent a tutorial on the meaning and application of First and Fourteenth Amendment guarantees in the higher education setting.

The first letter, signed by the Attorneys General of MT, AL, AR, GA, IN, KS, KY, LA, MS, NE, OK, SC, SD, TN, TX, UT, and VA, first analyzes the DOE proposal to vastly expand the definition of sexual harassment. This change would “chill the free exchange of ideas,” which would “intimidate students and faculty into keeping quiet on controversial issues.” (2)

The letter then deplores the rule’s plan to remove or modify important due process safeguards, including advance disclosure of evidence, impartial investigations, key written notice provisions, and live hearings. Cumulatively, these changes are “reminiscent of Star Chambers” that “stacked the deck against accused students.” The 37-page letter concludes, “In many instances, moreover, the Department’s Proposed Rule conflicts with the text, purpose, and longstanding interpretation of Title IX.”

The second letter charges the draft regulation lacks a clear statement of authority from Congress, and highlights the proposed rule’s unlawful attempt to preempt state laws that protect the rights of females. Signed by the Attorneys General of IN, AL, AZ, AR, GA, KS, KY, LA, MS, MT, NE, OK, SC, SD, TN, TX, UT, VA, and WV, the letter concludes simply, “The Proposed Rule threatens to destroy Title IX.” (3)
Attorney General Ken Paxton of Texas flatly charges the Biden proposal will “destroy constitutional rights.” (4) AG Paxton’s letter to the DOE concludes tartly, “the Proposed Rule promises to repeat the mistakes of the Department’s ill-advised 2011 Dear Colleague Letter.” (5)

All three letters sharply criticize the DOE plan to expand the definition of “sex” to include “gender identity.” Noting that the draft policy lacks definitions of “sex” or “gender identity,” the first letter notes that the Department of Education “simply waves its hand and—by regulatory fiat—alters a fundamental term, as if its novel definition was axiomatic.” (2)

The first letter also highlights the role of Catherine Lhamon, who served as the DOE Assistant Secretary for Civil Rights from 2013 to 2017, and was re-appointed to the same position in 2021. During the earlier period, the letter notes that Lhamon played the lead role in creating a “constitutional and regulatory mess.”

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