The law known as Title IX was signed by President Richard Nixon in 1972. It was a simple, one-sentence rule that had broad support from both Republicans and Democrats because most politicians did not consider it controversial. The purported original intent of Title IX was to prevent discrimination against women who wanted to play college-level sports at post-secondary schools that receive federal funds, but some conservative leaders considered it a feminist ploy to diminish men's sports.

Whatever the case, according to Dr. Buddy Ullman, retired professor of biochemistry and molecular biology at Oregon University of Health & Science: "The real problem started in the 1990s when the Supreme Court made several rulings that expanded the definition of gender discrimination to include harassment and assault." In a June 2 interview with Phyllis Schlafly Eagles President Ed Martin on his ProAmerica Report, Ullman explained: "These are politically motivated regulations that govern how schools must handle disputes — sexual harassment disputes, sexual assault claims, under the guise of Title IX."

In response to Martin's question of whether the regulations that were added to Title IX and the investigations that resulted were predictable, Ullman replied that "they were not something we saw coming." He alluded to a false accusation that was made against him personally during his teaching career and described the Title IX investigation as "straight out of Vladimir Putin's Russia." He said the Obama Administration "put together a guidance for the schools that was a disaster. It empowered functionaries to basically adjudicate these types of disputes and they resulted in a lot of erroneous outcomes. They often ended up in court and the wrong students typically prevailed."

Trump Education Department tried to right the ship

Ullman commended the Trump Administration and Education Secretary Betsy DeVos* for putting together "a set of regulations that were very well thought out," and which "leveled the playing field by overturning some of the Obama regs that were very slanted toward the accuser. In an effort to undo the Trump rules, the Biden Administration is revising Title IX again to include gender; controversial in the sense that it attempts to regulate pronoun use, etc."

When Martin asked: "Are we at the point now where Title IX is just a political and/or cultural football to be kicked back and forth," Ullman responded "Yes, it is both." He explained: "The Biden Admin is trying to reverse the regs that were put in place by Betsy DeVos without providing any reasons for doing this.

"They're trying to do two things: Loosen the rules to make it easier for female students to lodge complaints, a lot of which are frivolous ... in fact, in most cases the complaints don't rise to the level of sexual harassment. Secondly, they want to broaden the meaning of biological sex. Initially, it was about giving women equal access to play college-level sports, now they want to make it about sexual orientation and gender identification."

Ullman suggested that the end result could well mean a Title IX investigation if a student simply uses the "wrong" pronoun. He referenced, for example, that the State of Wisconsin was "prosecuting kids for using the wrong pronouns to address another student, which is a violation of those students' free speech rights." However, as reported by Blaze Media on June 6, that action was dropped after parents of the accused students hired the conservative Institute for Law and Liberty to defend them. The group notified the district in May that the school "had violated the boys' First Amendment rights and that the use of biologically correct pronouns does not constitute sexual harassment under Title IX or school policy." However, if the Biden Administration's new Title IX rules are adopted, such frivolous charges could result in a totally different outcome.

Both Ullman and Martin agree that Title IX has long been "weaponized" on college campuses — by students, by faculty, and by administrators. "I was Title IX'd," said Ullman, "by someone who wanted to get back at me for other reasons, and who made an allegation that I was only able to find out the specifics about many months later, after the case was closed.

Martin noted in a press release on May 31 that "redefining discrimination in schools and colleges to include so-called 'mispronouning' is bringing the thought police to life in American public schools, plain and simple."

Attorneys General take action

"Thankfully not all public leaders have lost their minds," Martin continued, "Montana's Attorney General Austin Knudsen is leading a coalition of 15 (and hopefully growing) attorneys general who are calling on the U.S. Department of Education to cancel this planned revision of Title IX. Such a radical interpretation is contrary to the very text of the law itself and would undoubtedly lead to a violation of the right of parents to decide the best interests of their children."

Martin is referring to the objections that have been raised in a letter signed by 15 Republican state attorneys general who are pushing back on Biden's pledge to replace "the DeVos era Title IX rule" with a new one. As reported by Dive Wire, the new rule would, among other things, "set up courtroom-like hearings for evaluating sexual assault cases." It will also "protect transgender students from discrimination under Title IX," which will likely be the final death knell for women's sports. The attorneys general noted in their letter that they "are prepared to take legal action against such provisions."

The letter is addressed to Catherine E. Lhamon, assistant secretary for the U.S. Department of Education, and conveys the signers' alarm that the department intends "to propose new regulations implementing Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.", in 2022, citing as their chief reason the department's failure "to provide sufficient justification for engaging in a new rulemaking."

The attorneys general are urging the U.S. Department of Education to "halt its effort and not disturb the current Title IX regulations." The letter states: "The 2020 Rule, which became effective on August 14, 2020, sets forth clear legal obligations that require schools to promptly respond to allegations of sexual harassment, follow a fair grievance process to resolve those allegations, and provide remedies to victims. It guarantees victims and accused students strong, clear procedural rights in a predictable, transparent process designed to reach reliable outcomes. It offers important new protections and benefits for victims of sexual harassment and sexual assault. It provides essential provisions protecting free speech and academic freedom. The 2020 Rule also clarifies an institution's entitlement to a religious exemption under § 1681(a)(3). The Department should not eliminate or modify any of these vital provisions."

The letter describes the toxic environment created by the Obama-era rules, and insists that Assistant Secretary Lhamon recuse herself if the new rulemaking moves forward. It reads: "The 2020 Rule was enacted in response to a constitutional and regulatory mess created by OCR from 2011 to 2016. As Assistant Secretary for Civil Rights from 2013 to 2017, you played a crucial role in creating this problem. OCR's infamous 2011 Dear Colleague Letter: Sexual Violence ("2011 DCL") and 2014 Questions and Answers on Title IX and Sexual Violence ('2014 Q&A') wreaked havoc on campuses across the country. OCR compelled schools to adopt the lowest standard of proof for proving sexual harassment and sexual assault claims—preponderance of the evidence—and pressured schools to find accused students responsible for sexual misconduct even where there was significant doubt about culpability."

Ed Martin stated on behalf of Phyllis Schlafly Eagles: "We wish all the best to General Knudsen's coalition and we plan to support them in any way we can as they face down this disturbing assault on Free Speech, freedom of conscience, and the right of parents over their children's education."

National Association of Scholars urges citizens to speak out

In its April 2022 newsletter, the National Association of Scholars (NAS) included an article on the Biden Administration efforts to promulgate a new Title IX regulation. NAS characterized the law as being "frequently abused by feminists who see it as a weapon in the sex wars—that is, to falsely accuse men of sexual assault."

The NAS called the Biden initiative a "waste of tax dollars as it duplicates much of what [Betsy] DeVos already did, such as a 'comprehensive review' of the law's applications." The organization lamented that the DeVos efforts had already resulted in stronger due process for both accusers and accused, and that these measures have been in effect for less than two years.

But the point of the NAS article was not only to decry the Biden Education Department's unnecessary efforts to revamp the good Title IX regulations of 2020, but also to urge its members to speak out during the Office of Management and Budget's (OMB) public comment sessions "so individuals can express their concerns about Title IX going forward." NAS is asking anyone concerned with this new threat to Title IX to take advantage of the public comment sessions of the Office of Information and Regulatory Affairs ("OIRA") so individuals can express their concerns about Title IX going forward.

NAS notes that "the Biden proposal is also expected to redefine the word 'sex' to include not just sexual orientation but also 'gender identity.' This will enable students to use Title IX for complaints about a hostile environment if they think that hostility is because of their sexual orientation or because of their expressed 'gender identity,' including their stated pronoun preferences.

"Such redefinitions by federal agencies constitute yet more unlawful agency overreach and would violate current United State Supreme Court jurisprudence, many state laws as well as the plain meaning of this federal statute."

Anyone interested in commenting may make an appointment at the following link: https://www.reginfo.gov/public/do/eo/neweomeeting. Commenters should enter the regulatory identification number ("RIN") 1870-AA16. Those submitting a request will receive a confirmation email through which they can complete the registration process. Requestors will then receive a time slot for making their statements. Reading a written statement is permitted, and commenters may also upload documents.

The NAS adds that it is already on the calendar for comment, so individuals seeking to comment should use their own personal or professional affiliations rather than show affiliation with NAS.

*NOTE: Education Reporter covered the Trump/DeVos revamp of the Obama Administration Title IX regulations in its Summer 2020 issue.

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