SAVE Commends 21 Senators Who Criticized ‘Lawless’ Title IX Proposal

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Rebecca Stewart: 513-479-3335

SAVE Commends 21 Senators Who Criticized ‘Lawless’ Title IX Proposal

WASHINGTON / July 26, 2022 – SAVE applauds the 21 Republican senators who recently sent the Department of Education a letter that is critical of its Title IX proposal (1). The communication notes, “the new proposed rule encourages institutions to adopt processes that have either been struck down or been viewed skeptically by multiple courts.”

The letter was signed by Senators Richard Burr (N.C.), Roger Wicker (Miss.), Cindy Hyde-Smith (Miss.), John Barrasso (Wyo.), John Boozman (Ark.), Mike Braun (Ind.), Bill Cassidy (La.), Tom Cotton (Ark.), Kevin Cramer (N.D.), Ted Cruz (Texas), Steve Daines (Mont.), Joni Ernst (Iowa), James Inhofe (Okla.), James Lankford (Okla.), Cynthia Lummis (Wyo.), Roger Marshall (Kan.), Marco Rubio (Fla.), Rick Scott (Fla.), Tim Scott (S.C.), Thom Tillis (N.C.), and Tommy Tuberville (Ala).

SAVE regards the Title IX proposal as “lawless” because it seeks to effectively overturn the decisions of hundreds of trial and appellate court judges, a milestone Supreme Court decision, and explicit congressional intent:

Due Process: Hundreds of judicial decisions against universities, of which 175 are summarized in a recent SAVE analysis (2), provide for a series of due process rights to accused students, including impartial investigations, prior review of evidence, and hearings with cross-examination. Unfortunately, the proposed Department of Education rule seeks to remove these constitutionally-based rights.

Definition of Sexual Harassment: The regulatory proposal seeks to negate the Supreme Court’s 1999 Davis v. Monroe definition of sexual harassment as conduct that is “severe, pervasive, and objectively offensive” (3). Specifically, the Department of Education proposes a dramatic and unwieldy expansion of sexual harassment to be, “conduct that is sufficiently severe or pervasive, that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate” in their education.”

Definition of Sex: The draft regulation seeks to redefine the word “sex” to include “gender identity.” This would serve to erase congressional intent as reflected in the original Title IX law. Federal Judge Kim Gibson has opined, “On a plain reading of the statute, the term ‘on the basis of sex’ in Title IX means nothing more than male and female….It is within the province of Congress—and not this Court—to identify those classifications which are statutorily prohibited.” (4)

Under the American system of government, the Executive branch is charged with carrying out the laws that are enacted by Congress. The Department of Education’s attempt to redefine “sex” represents an arrogant usurpation of the prerogatives and rights of the Legislative branch.

To date, 130 organizations and 58 editorials have expressed opposition to the Title IX plan (5). A rally will be held in Washington, DC on August 11 to highlight these concerns, and to call on the Department of Education to abandon its plans to move forward with its Title IX proposal (6).

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