Miltenberg: “The Red State Revolt Against Biden’s Title IX Rules Heads to Court,” The New York Sun


The red state revolt against the Biden administration’s Title IX rule changes
ramped up Monday with five states filing lawsuits against the United States
Department of Education to halt implementation of the new civil rights in
education regulations.

Texas’s governor, Greg Abbott, also instructed his state’s schools Monday not to
comply with the new rules. Mr. Abbott made his declaration in an open letter to
President Biden, which he posted to X, vowing “to ignore Biden’s illegal dictate.”

Is this political theater or do these suits and executive edicts have teeth? They
come after the education chiefs in Florida, South Carolina, Oklahoma, and
Louisiana instructed their school superintendents last week to ignore the new
Title IX rules. Florida’s governor, Ron DeSantis, declared Thursday that the
Sunshine State “would not comply.”

Texas is also taking this fight to the courts. The state’s attorney general, Ken
Paxton, sued the Department of Education and several high-ranking ofcials
Monday over the administration’s sweeping changes to the 1972 civil rights law
to prohibit sex-based discrimination in schools that receive federal funding.
The lawsuit, filed jointly with America First Legal, asks a federal district court
to halt implementation and to declare the Biden administration’s new rules
“substantively unlawful.”

“Texas will not allow Joe Biden to rewrite Title IX at whim, destroying legal
protections for women in furtherance of his radical obsession with gender
ideology,” Mr. Paxton said in a statement.

The attorneys general of Louisiana, Mississippi, Montana, and Idaho also filed a
joint suit Monday against the Department of Education and ranking ofcials,
calling the Biden administration’s new Title IX rules gross “government
overreach” that will “gut the very essence of Title IX and destroy decades of
advances in equal educational opportunities, especially for women and girls.”

The Department of Education issued its new Title IX rules earlier this month,
broadening the law’s scope — originally to protect women and girls — to include
protections for transgender persons and from discrimination based on sexual
orientation. Title IX primarily governs how schools handle sexual misconduct
complaints and how they allocate resources for athletics. The new rules will go
into efect August 1.

Critics of the Biden administration’s changes say that the new rules will gut due
process protections for students accused of sexual misconduct and harm
women by prohibiting schools from barring transgender women, who are born
men, from accessing female-only spaces like locker rooms and bathrooms. The
new rules also expand the definition of sexual harassment to include things like
misgendering or questioning a person’s biological sex — constitutionally
protected speech that will now violate Title IX rules.

The Biden administration’s final Title IX rule is “not in accordance with the law
and exceeds the Department’s statutory authority because it compels recipients
to violate the First Amendment to remain complaint with Title IX,” the Texas
lawsuit says. “It is substantively unlawful because its purported
‘interpretations’ of Title IX squarely conflict with the text of that statute.”

The red state revolt may be efective politics, but an attorney who specializes in
Title IX cases, Andrew Miltenberg, says the courts are unlikely to block the
Biden rules from being implemented. Mr. Miltenberg has experience with this:
he sued the Department of Education in 2017 over a lack of due process
protections for students accused of sexual assault under Obama-era guidance.

“Unfortunately, while the suit looks to have merit, the court is unlikely to issue
an injunction against the release of new Title IX guidelines,” Mr. Miltenberg

tells the Sun of the Texas suit. “The topic is a political, emotional, and biological
minefield and so fraught that the court is unlikely to weigh in and step into a
legislative role until there is a plaintif that can show real damages from the
implementation of these rules.”

Mr. Miltenberg expects there will be more lawsuits after the start of the next
school year, when the new Title IX guidance is in place. He says the red state
governors refusing to comply is an “interesting move.” How efective it will be
depends on whether the Department of Education sues to enforce its rules.

Who wins the presidential election in November will also impact this. If
President Trump wins, the whole Title IX rule change process will start again. If
President Biden wins, the Department of Education could take this as a
mandate to enforce its rules. Mr. Biden will also likely implement some version
of his transgender athletics policy.

“The Department does not comment on pending litigation,” a Department of
Education spokesman tells the Sun in a statement. “As a condition of receiving
federal funds, all federally-funded schools are obligated to comply with these
final regulations and we look forward to working with school communities all
across the country to ensure the Title IX guarantee of nondiscrimination in
school is every student’s experience.”

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