Category: Sexual Harassment

Flawed Biden Proposal May Irreparably Harm Title IX. Lawmakers Are Urged to File Comments.

Post author By Edward Bartlett
Post date August 22, 2022

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Flawed Biden Proposal May Irreparably Harm Title IX. Lawmakers Are Urged to File Comments.

WASHINGTON / August 22, 2022 – The Biden Title IX proposal is attracting a growing wave of criticism by lawmakers, attorneys general, 150 organizations, and editorialists (1). The criticisms underscore a concern that the Department of Education proposal is so deeply flawed that it is discrediting the nation’s broader effort to end sex discrimination. SAVE invites lawmakers around the nation to file Comments urging that the Department of Education withdraw its ill-considered proposal.

The federal Title IX law 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.”

But the Biden draft Title IX regulation, released on June 23, ignores the plain language and clear intent of the Title IX law, which is designed to curb sex discrimination against males and females.

By means of 175 lawsuit decisions, federal judges have delineated a series of due process protections to protect male students from false allegations (2). In a recent editorial, Rick Manning, president of Americans for Limited Government, accused the Department of Education of promoting “guilty without remorse regulations” in which the “concept of justice in America is turned on its head.” (3)

Equally strong criticisms have been leveled by advocates for women’s rights. The Independent Women’s Voice, for example, charges the Biden proposal will “subvert” the rights of parents and “destroy” the purpose of Title IX (4).

The Biden Title IX plan proposes to alter the definition of “sex” to include “gender identity.” This signifies a repudiation of congressional intent, which never contemplated such a change.

The proposed “gender identity” language would provide a formidable legal foundation to the “gender identity movement” (5). Recent articles have documented how the gender identity movement has established a presence in schools across the nation:

Nationwide, the GSA Network serves as an umbrella organization for more than 4,000 “gender and sexuality alliances” in 40 states. The organization recommends that school advisors not advise parents about their child’s participation in such clubs (6).
In California, the Sacramento City Unified School District has adopted a “queer theory–based pedagogy that encourages teachers to ‘normalize gender exploration,’ confront their ‘cisgender privilege,’ and maintain strict secrecy when facilitating a child’s gender or sexual transition.” (7)
In Oregon, the Portland public schools have launched a new curriculum that teaches students to ”begin exploring ‘the infinite gender spectrum.’” (8)

Under the Biden plan, questioning such initiatives would constitute sex discrimination and therefore be illegal. This would violate First Amendment free speech guarantees (9).

Lawmakers are called upon to submit Comments to the Department of Education, urging the DOE to abandon its deeply flawed proposal. Step-by-step instructions to submit Comments are available online (10).

The deadline to submit Comments is September 12.

Citations:

Campus Department of Education Due Process Office for Civil Rights Sexual Assault Sexual Harassment Title IX

Relentless Pressure on Colleges and Universities to End Campus ‘Kangaroo Courts’

Post author By Edward Bartlett
Post date August 18, 2022

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Relentless Pressure on Colleges and Universities to End Campus ‘Kangaroo Courts’

WASHINGTON / August 18, 2022 – As the new academic year approaches, SAVE is urging school administrators to exercise greater oversight over their Title IX offices to bring an end to the notorious “Kangaroo Courts.” Several developments during the Summer months highlight the growing pressures on institutions to assure fairness in Title IX proceedings:

Judicial Deference: On June 2, Second Circuit Appellate Judge Jose Cabranes issued a concurrence that compared campus disciplinary committees to the infamous English Star Chambers and warned, “[T]hese threats to due process and academic freedom are matters of life and death for our great universities.” (1) The continued wave of Title IX lawsuits has eroded the long-standing notion of judicial deference to institutions of higher education.

State Legislation: On June 15, Louisiana Governor John Edwards signed the “Student Due Process and Protection Act” into law (2). The campus bill had been approved in both the House and the Senate without a single opposing vote. To date, 11 states have enacted legislation that mandate campus due process protections (3).

Presumption of Innocence: A national survey conducted in June for SAVE by YouGov found that 87% of respondents support a presumption of innocence for college disciplinary hearings (4).

Lawsuit: On July 20, Judge CJ Williams of the District Court of Northern Iowa handed down a decision against Fordt University that documented widespread procedural irregularities (5). The decision was one of the most sweeping Title IX rulings issued in the past decade.

DC Rally: An August 11 rally held in Washington, DC featured several presentations on the need for greater attention to campus fairness (6). Teresa Manning of the National Association of Scholars highlighted how campus due process rights “protect the lone individual up against powerful institutions like government and schools.” (7)

Student Enrollments: The National Student Clearinghouse Research Center reports that “postsecondary institutions have lost nearly 1.3 million students since spring 2020.” (8) Negative media coverage of unconstitutional Title IX procedures is likely to worsen the problem of declining student enrollments, especially among male students.

This past week in Ithaca, New York, a person dressed as a kangaroo made an appearance on the campus of Cornell University. Sponsored by the New Civil Liberties Alliance, the kangaroo charged, “If you have a Title IX sexual misconduct complaint filed against you, chances are you will not get a fair hearing.” (9)

SAVE’s “Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation” summarizes 175 Title IX decisions favorable to the accused student (10).

Citations:

Department of Education Office for Civil Rights Sexual Assault Sexual Harassment Title IX

DC Rally Reveals Deceptive and Coercive Agenda Behind Biden Title IX Plan

Post author By Edward Bartlett
Post date August 15, 2022

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

DC Rally Reveals Deceptive and Coercive Agenda Behind Biden Title IX Plan

WASHINGTON / August 15, 2022 – A rally held in Washington, DC on August 11 featured impassioned calls for the Department of Education to abandon plans to move ahead with its proposed Title IX regulation. The rally addressed six major concerns with the draft Title IX policy that was released on June 23: Due process, free speech, women’s sports, parental rights, bathroom privacy, and gender transitioning (1).

Although the draft policy is titled, “Nondiscrimination on the Basis of Sex in Education Programs,” in reality the policy would worsen sex discrimination against two groups: Males falsely accused of sexual misconduct (2), and biological females involved in sports activities (3).

Many of the rally presenters highlighted the coercive and controlling nature of current gender-identity policies, which would be expanded and strengthened by the proposed regulation:

Due Process: Teresa Manning of the National Association of Scholars charged that Biden’s proposed rule “would return to the bad old days of the ‘single investigator’ INQUISITION, where one school official holds ‘individual meetings’ to decide guilt or innocence.”

Free Speech: Stuart Taylor of Princetonians for Free Speech quoted one observer who believes the proposed Biden rule “could officially destroy a life by expulsion from college on the basis of being inadequately woke that one’s utterance offends someone.”

Women’s Sports: Sarah Parshall Perry of the Heritage Foundation warned the Biden administration’s proposal will fundamentally harm female sports and “eviscerates everything our mothers and grandmothers worked to achieve.”

Parental Rights: Ryan Bomberger of The Radiance Foundation noted that parents “can be harassed by school administrations because you’re speaking biological truths….that’s a problem.”

Bathroom Privacy: Referring to threats of the USDA to withhold school lunch funds for non-compliance with transgender bathroom policies, Maya Noronha of the First Liberty Institute compared government officials to “school-yard bullies” who are ”threatening to defund schools.”

Gender Transitioning: Jon Schweppe of the American Principles Project revealed, “You put [students] on these puberty blockers, you put them on these cross-sex hormones, it’s permanent.”

Edward Bartlett of SAVE summarized these concerns by noting that Biden’s gender identity experiment “is not a good-faith attempt to achieve acceptance and affirmation. It is really an agenda of coercion, conformity, and control.”

The newly established Title IX Network will seek to counter the harmful effects of flawed Title IX policies at the national, state, and local levels (4). More information about the August 11 rally is available online (5).

Citations:

Campus Department of Education Due Process Office for Civil Rights Press Release Sexual Assault Sexual Harassment Title IX

Assailed from the Right and the Left, Biden ‘Gender Identity’ Proposals Face Mounting Opposition

Post author By Edward Bartlett
Post date August 1, 2022

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Assailed from the Right and the Left, Biden ‘Gender Identity’ Proposals Face Mounting Opposition

WASHINGTON / August 1, 2022 – Criticisms of the Biden “gender identity” proposals have increased in recent days. The disapprovals have been issued by liberals and conservatives, federal lawmakers, state governors, attorneys general, and others.

These criticisms have multiplied and intensified over the past two weeks:

July 21: Twenty U.S. senators wrote a letter to President Biden charging his Title IX proposal would return colleges to a “deeply flawed disciplinary process.” (1)

July 22: Three feminist professors published an editorial in the Chronicle of Higher Education claiming the Title IX regulation’s mandatory reporting provision is a “violation of adult autonomy” and saying the proposal “will only make things worse.” (2)

July 26: Twenty-two Attorneys General filed a 17-count lawsuit against the United States Department of Agriculture seeking to block its plan to withhold school lunch funding from schools that do not comply with Biden’s gender identity agenda (3).

July 26: Former President Trump issued a strongly worded statement describing the Biden gender identity proposals as the “perverted sexualization of minor children.” (4)

July 27: Fifteen Republican governors released a joint letter to President Biden vowing, “our states will have no choice but to pursue avenues to redress any harm that is done to our children as a result” of any reinterpretation of Title IX (5).

July 27: The Catholic News Service described a recently proposed DHHS regulation on transgender services as posing an “existential threat to religious-based employers.” (6)

July 30: Bari Weiss’ Common Sense published an article, “The Beginning of the End of ‘Gender-Affirming Care’?” documenting how several liberal-leaning European countries are now reining in their gender transitioning initiatives (7).

The Biden Title IX proposal is deeply flawed because it would harm due process, free speech, women’s sports, bathroom privacy, and parental rights; and would expand the practice of gender experimentation (8).

To date, nearly 140 organizations have come out in opposition to the Title IX plan (9). A rally will be held in Washington, DC on August 11 to call on the Department of Education to disavow its plan to move forward with its Title IX proposal (10).

According to a recent UCLA report, 1.4% of all youth ages 13-17 self-identify as transgender (11).

Citations:

Campus Due Process Free Speech Office for Civil Rights Press Release Restraining Order Sexual Harassment Title IX

Three Judicial Decisions Spotlight Flaws of Biden Title IX Plan. SAVE Urges Lawmakers to Not Remain Silent.

Post author By Edward Bartlett
Post date July 25, 2022

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Three Judicial Decisions Spotlight Flaws of Biden Title IX Plan. SAVE Urges Lawmakers to Not Remain Silent.

WASHINGTON / July 25, 2022 – Three judicial decisions handed down in the past month reveal major problems with the proposed Title IX policy that was recently released by the Department of Education (1). Over 130 organizations around the country have come out in opposition to the plan (2). SAVE urges lawmakers to speak out strongly against the Biden proposal.

The three judicial decisions highlight the harmful effects of the Title IX proposal on free speech, women’s sports, and due process.

Free Speech

On June 30, the District Court of Idaho handed down a decision against the University of Idaho in favor of three Christian law students who had objected to Title IX “no contact orders” that were issued against them (3). The orders had been issued only because the students had offered to engage in a respectful conversation about biblical teachings of marriage and sexuality. In the ruling, Judge David Nye noted that the university’s actions, “were designed to repress specific speech.”

The decision highlights the fact that the Department of Education is proposing a sweeping re-definition of sexual harassment that many believe will interfere with the exercise of free speech (4).

Women’s Sports

On July 15, Judge Charles Atchley of the Eastern District Court of Tennessee ordered the U.S. Department of Education to cease its unlawful enforcement of a directive allowing transgender athletes to participate in women’s sports (5).

The decision is timely because the proposed Title IX regulation would expand the definition of “sex” to include “gender identity,” opening the door to wider participation of transgenders in women’s sports. In response, federal lawmakers of both parties have issued statements condemning the policy’s harmful effects on female athletics (6).

Due Process

Last Wednesday, Judge CJ Williams of the District Court of Northern Iowa issued a sweeping decision against Fordt University. The court noted widespread procedural irregularities including not informing the accused student of his rights, bias by the Title IX Coordinator, and the shredding of documents by school officials (7). The decision was one of the most sweeping Title IX rulings issued in the past decade.

Similar irregularities would be encouraged by the Biden plan, which removes a student’s right to a number of fundamental due process protections such as impartial investigations and cross-examination (8).

A more detailed analysis of the free speech, women’s sports, and due process concerns raised by the Biden Title IX proposal is available online (9). Even though the federal Title IX law was enacted to curb sex discrimination in schools, many believe the recent Title IX proposal will actually worsen these problems (10).

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 the Title IX proposal (11).

Citations:

Campus Due Process Sexual Assault Sexual Harassment Title IX

119 Organizations On Record as Opposed to Biden Title IX Plan, Cite Numerous Concerns

Post author By Edward Bartlett
Post date July 18, 2022

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

119 Organizations On Record as Opposed to Biden Title IX Plan, Cite Numerous Concerns

WASHINGTON / July 18, 2022 – A growing number of organizations – 119 at last count — have gone on record in opposition to the Biden Title IX regulation, which was issued on June 23 (1). The opposing groups include public policy organizations, public interest law firms, religious groups, and local grass-roots entities. The complete listing of groups is included at the bottom of this press release (2).

Collectively, these organizations represent a formidable social and political force.

Opposition to the draft Title IX policy centers around six major concerns: due process, free speech, women’s sports, parental rights, bathroom and locker room privacy, and gender experimentation (3):

Due Process

Many colleges have failed to abide by the Fourteenth Amendment, which promises due process protections for all. The new Title IX regulation seeks to remove key due process protections for persons, especially male students, accused of violating campus sexual misconduct policies.

Free Speech

A recent survey of 481 colleges reported only 12% received a “green-light” rating. The draft Title IX regulation expands the definition of sexual harassment, which will serve to curtail campus speech about controversial topics.

And once the legal definition of “sex” is expanded to include gender identity, students can demand that persons call them by their preferred pronouns. But mandated speech is not free speech. In a recent Wisconsin case, a 13-year-old boy refused to use a fellow student’s preferred “they” and “them” pronouns, resulting in a Title IX complaint against him.

Women’s Sports

Transgenders enjoy numerous physical advantages over biological females. This contradicts the whole purpose of Title IX, which is to assure fairness for all students regardless of sex. For example, transgender Lia Thomas set new school and program records after competing on the women’s UPenn swim team.

Bathrooms and Locker Room Privacy

In August 2021, Loudon County, VA approved a new policy on Rights of Transgender and Gender-Expansive Students. During the following three months, a student committed a sexual assault in a girl’s bathroom, high schoolers staged a walk-out to protest the schools’ handling of the incident, and the case became a focus of heated debate during the race for governor.

Parental Rights

If the definition of sex is expanded to include “gender identity,” parents may lose their right to restrict the exposure of young children to age-inappropriate discussions of sexual practices. Worse, children could be gender “transitioned” and assigned a new name without their parents’ knowledge or consent.

Gender Experimentation

The vast majority of children who struggle with their sex come to accept their biological sex by adulthood. Boys and girls need to be supported, not encouraged to question fundamental facts of their biology. Encouraging young children to question their own biology represents a radical experiment in gender engineering.

A rally will be held in Washington, DC on August 11 to highlight these concerns, and to call on the Department of Education to not move forward with its Title IX proposal (4).

Citations:

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ORGANIZATIONS OPPOSED TO TITLE IX PLAN

SAVE
Alliance Defending Freedom
American Association of Christian Schools (21):
- Buckeye Christian School Organization
- Christian Schools of Arizona
- Christian Schools of Vermont
- Delaware Association of Christian Schools
- Golden State Association of Christian Schools
- Illinois Association of Christian Schools
- Indiana Association of Christian Schools
- Maryland Association of Christian Schools
- Michigan Association of Christian Schools
- Mid-South Association of Christian Schools
- Missouri Association of Christian Schools
- New Mexico Association of Christian Schools
- New York Association of Christian Schools
- North Carolina Christian School Association
- Northwest Association of Christian Schools
- South Carolina Association of Christian Schools
- Sunshine State Association of Christian Schools
- Tennessee Association of Christian Schools
- West Virginia Christian Education Association
- Wisconsin Association of Christian School
American Principles Project
Concerned Women for America
Eagle Forum (6)
- Alabama Eagle Forum
- Tennessee Eagle Forum
- Texas Eagle Forum
- Utah Eagle Forum
- Washington Eagle Forum
Families Advocating for Campus Equality:
Family Policy Alliance
FIRE
Heritage Action
Heritage Foundation
Independent Women’s Forum
National Association of Scholars
Parents Defending Education
Speech First
U.S. Conference of Catholic Bishops
National Groups (36): 60 Plus Association; Advancing American Freedom; Alexander Hamilton Institute; ACRU Action; American Council for Health Care; American Family Association; Americans for Limited Government; Center for Military Readiness; Center for Urban Renewal and Education; Child Protection League; Children First Foundation; Citizens for Renewing America; Coalition for a Fair Judiciary; ConservativeHQ; Dr. James Dobson Family Institute; FAIR Energy Foundation; Firebrand Moms; First Liberty Institute; ForAmerica; Learn to Protect Kids; Less Government; Men and Women for a Representative Democracy; Moms for America; No Left Turn in Education; Radiance Foundation; Recover America Action; Reaching America; Rule of Law Committee; Save Our States; Strategic Coalitions & Initiatives; Tea Party Nation; The Conservative Caucus; United Families International; Voices Against Trafficking; Washington Marketing Group; and Women for Democracy in America.
State-Level Groups (17): California Association of Scholars; Caesar Rodney Institute (DE); Cascade Policy Institute (OR); Delaware Family Policy Council; Family Action Council of Tennessee; Family Policy Alliance of Wyoming; Frontline Policy Council (GA); Louisiana Family Forum; Louisiana Save Our Schools; Middle Resolution Policy Network (VA); Moms for Liberty (TN); Oklahoma Council of Public Affairs; Palm Beach Freedom Institute; Rhode Island Center for Freedom and Prosperity; Roughrider Policy Center (ND); South West Policy Group (AZ); and United Against Racism in Education (MD).
Religious Groups (12): American Association of Evangelicals; Association of Christian Schools International; Catholics Count; Coalition of African American Pastors; Coalition of Conservative Christian Colleges; Conservatives of Faith; Institute on Religion and Democracy; Katartismos Global; Schindler’s Ark; Maranatha House Ministries; Tradition, Family, Property, Inc.; and Well Versed.
Title IX Law Firms (14): Agee, Owens & Cooper, LLC; Albeit Weiker, LLP; Binnall Law Group; Bucci Law; Friedman & Nemecek, LLC; Jauregui Law Firm; Law Offices of Barry S. Jacobson; Law Offices of Scott J. Limmer; Nesenoff & Miltenberg LLP; Rosenberg & Ball Co., LPA; Rupp Baase Pfalzgraf Cunningham LLC; Sammons Law; Tin Fulton Walker & Owen; and West, Webb, Allbritton & Gentry, P.C.

Campus Free Speech Sexual Assault Sexual Harassment Title IX

Biden Sees Two-Point Approval Drop Following Release of Controversial Title IX Plan

Post author By Edward Bartlett
Post date July 11, 2022

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Biden Sees Two-Point Approval Drop Following Release of Controversial Title IX Plan

WASHINGTON / July 11, 2022 – On June 23, President Biden’s Department of Education released its proposed Title IX regulation (1). Two weeks later, Biden’s approval rating had fallen by two full points. The many controversies surrounding the Title IX proposal likely contributed to the approval decline.

According to the Reuters/Ipsos poll of American adults, Biden’s approval rating from June 21- 22 stood at 38%. Two weeks later, July 5-6, his approval had fallen to 36%, a two-point decline. Likewise, the Economist/YouGov poll of registered voters recorded a 43% job approval from June 18-21. Two weeks later, July 2-5, his approval had declined to 41%, a two-point fall (2).

Title IX is the federal law that prohibits sex discrimination in schools. Biden’s recently introduced Title IX regulation features three highly controversial changes:

Expands the definition to “sex” to include “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
Encroaches on free speech by broadening the definition of sexual harassment to include “unwelcome sex-based conduct” that can be evaluated “subjectively and objectively.”
Eliminates a series of due process protections for accused students, marking a return of the notorious “Kangaroo Courts” to college campuses.

These changes are predicted to have harmful ripple effects in six areas: Due process, free speech, pronoun mandates, women’s sports, parental rights, and student privacy in bathrooms and locker rooms (3).

As a result, the Biden education policy has been beset by numerous challenges (4):

Over 100 organizations have gone on record opposing the proposal.
48 editorials have criticized the plan.
The Attorneys General from 20 states have filed a lawsuit against the proposed rule (5).

Both Republican and Democratic lawmakers are expressing opposition to the proposal. In a recent TV interview, former Democratic member of Congress Tulsi Gabbard complained that Biden’s Title IX plan is “rejecting the objective reality that there are biological differences between a man and a woman” and is “essentially pointing to the erasure of women.” (6)

Biden’s recent decline in approval ratings can be attributed to a number of factors, including his controversial Title IX plan. According to the Washington Post, education is one of the top five concerns of Americans as they approach the November elections (7).

Citations:

Campus Department of Education Office for Civil Rights Sexual Assault Sexual Harassment Title IX

New Title IX Proposal Will Obstruct Free Speech, Worsen Declines in College Enrollments

Post author By Edward Bartlett
Post date July 5, 2022

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

New Title IX Proposal Will Obstruct Free Speech, Worsen Declines in College Enrollments

WASHINGTON / July 5, 2022 – The Title IX policy recently proposed by the U.S. Department of Education (1) seeks to dramatically expand the definition of sexual harassment, thereby curtailing free speech on campus. If enacted into law, the change is likely to exacerbate the worrisome 10-year decline in college enrollments.

On June 23, the Department of Education released a proposal to expand the definition 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.

This broad definition means that any comment, gesture, or joke that is “subjectively” offensive could trigger a Title IX complaint, and is certain to curtail campus free speech. Several observers have issued statements strongly critical of the proposed definition:

Hans Bader: “The Biden administration’s proposed definition of sexual harassment disregards the Supreme Court’s Davis decision. It adopts a definition of harassment that is even broader in some respects than the broad harassment definition used in workplaces, which the Supreme Court rejected as impractical for schools.” (2)

Robby Soave: “legitimate classroom speech that was subjectively offensive and occurred repeatedly could now become a matter for the campus Title IX cop.” (3)

Independent Women’s Law Center: “Under the proposed rules, schools that do not crack down on ‘misgendering’ or the refusal to use preferred pronouns can have their federal funding revoked or be sued for monetary damages.” (4)

If the proposed changes go into effect, they will likely impact college enrollments, which have declined 13% over the past decade (5), with male students the hardest hit (6). The National Student Clearinghouse Research Center recently reported the alarming fact that “postsecondary institutions have lost nearly 1.3 million students since spring 2020.” (7)

To date, nine Congressional lawmakers, 61 organizations, and 41 commentators have gone on record in opposition to the Title IX proposal (8). SAVE urges college administrators who are concerned about falling student enrollments to speak out against the Title IX proposal.

Citations:

Office for Civil Rights Sexual Assault Sexual Harassment Title IX

SAVE Commends Attorneys General for Lawsuit to Block Dud Title IX Proposal

Post author By Edward Bartlett
Post date June 30, 2022

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

SAVE Commends Attorneys General for Lawsuit to Block Dud Title IX Proposal

WASHINGTON / June 30, 2022 – Last Thursday the Department of Education released its proposed Title IX regulation (1). Within days, the Attorneys General from 20 states amended a prior lawsuit (2) against the Department of Education to also obtain a Preliminary Injunction to block implementation of the draft Title IX rule (3).

The June 27 amended lawsuit explains that the Department of Education issued a Notice of Interpretation in 2021 that stated, “Title IX’s prohibition on sex discrimination encompasses discrimination on the basis of sexual orientation and gender identity.” Then the Department of Education used its own sub-regulatory statement as a legal basis for its recent Title IX policy.

This sidesteps the well-recognized administrative procedure to first issue a regulation, and then release guidance that interprets the regulation.

The newly released draft regulation has triggered a strong negative response. Within seven days, the new policy has resulted in (4):

Criticisms by Republican and Democratic members of Congress.
Statements of opposition by over 50 national and state-level organizations
Scathing commentaries by the Editorial Boards of the Wall Street Journal (5) and Washington Examiner (6).
Over 30 editorials, including ones that compare the policy to Soviet Show-Trials (7) and to the Spanish Inquisition (8).

An earlier Attorney General letter to the Department of Education warned, “we will fight your proposed changes to Title IX with every available tool in our arsenal.” (9) Areas of concern include campus due process, free speech, women’s sports, and parental rights (10).

Eleven states have enacted laws designed to assure fairness in campus Title IX proceedings (11). Many of these statutes mandate investigator impartiality, parties’ access to evidence, a formal hearing, cross-examination, and/or the presumption of innocence. All five of these procedures are substantially weakened or eliminated by the draft Title IX policy.

SAVE commends the 20 Attorneys General for taking bold action. SAVE calls on the Attorneys General in the remaining 30 states to take proactive steps to assure campus fairness and due process in all institutions of higher education in their states.

Citations:

Campus Department of Education Free Speech Investigations Office for Civil Rights Sexual Assault Sexual Harassment Title IX

Unlawful: SAVE Calls on Lawmakers to Reject Biden Title IX Proposal

Post author By Edward Bartlett
Post date June 27, 2022

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Unlawful: SAVE Calls on Lawmakers to Reject Biden Title IX Proposal

WASHINGTON / June 27, 2022 – A robust body of American case law undergirds due process and free speech at colleges and universities. Unfortunately, the Title IX policy recently proposed by the Biden Department of Education (1) ignores and effectively overturns much of this case law, ignoring key protections enumerated in the First and Fourteenth Amendments.

The body of Title IX case law includes 145 decisions by trial courts, 29 holdings by appellate courts, and one Supreme Court decision (2). The case law has continued to expand in recent months, with appellate findings against the University of Denver, Cornell University, and Harvard University for violations of fair procedure (3).

Following are examples how the Biden proposal sidesteps these judicial decisions:

The Biden plan would allow the same official to serve as both the investigator and decision-maker, what is known as the “single-investigator” approach. Conflating these two roles constitutes a conflict of interest and leads to biased investigations. Indeed, 47 judicial decisions specifically highlighted the problem of investigative bias.
Under the proposed rule, respondents would be allowed access only to a “description of the relevant evidence,” which could be provided either “orally or in writing.” But 27 judicial decisions called out schools for restricting student’s access to relevant evidence.
The Biden approach would dispense with cross-examination and hearings. Instead, adjudicators would be permitted to ask their questions “during individual meetings with the parties.” But 38 judicial decisions highlighted schools’ lack of adequate cross-examination procedures, and 24 decisions specifically called out the failure of schools to assure adequate credibility assessment of the parties.

The over-reach of the Department of Education policy is most apparent in its proposed definition of sexual harassment. In Davis v. Monroe, the Supreme Court defined sexual harassment as “harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” (4)

In contrast, the Department of Education is proposing to dramatically expand the definition 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. This broad definition means that any comment or gesture that is “subjectively” offensive could trigger a Title IX complaint, and is certain to curtail campus free speech.

The proposed Biden plan also violates many provisions found in state-level campus due process laws, which are enumerated on the SAVE website (5).

A recent Wall Street Journal editorial decries, “By proposing to jettison fair proceedings, the Education Department is setting colleges and universities on a collision course with the courts.” (6)

The Department of Education’s Title IX proposal is flawed in its over-arching disregard for due process and fairness, and is antithetical to democratic ideals of free speech. SAVE calls on lawmakers to reject the Biden Title IX proposal.

A listing of media outlets, lawmakers, organizations, and commentators who have already expressed opposition to the Title IX proposal is available online (7).

Citations: