Miltenberg: “Why Conservatives Want New Title IX Rule Blocked,” Inside Higher Ed


Outraged over the Biden administration’s decision to expand sex discrimination protections under Title IX to LGBTQ+ students, a slew of conservative groups and Republican officials plan to sue to block the new regulations from taking effect this summer. Critics of the rule argue that the administration is essentially redefining the decades-old law that prohibits discrimination based on sex and was aimed at ensuring women and girls had equitable access to education. They also take issue with changes in the new Title IX regulations that change how colleges respond to and investigate reports of sexual misconduct and harassment, including measures that some experts say could infringe on the rights of accused students. Still, most of the criticism has been directed at the provisions protecting LGBTQ+ students. “The Department of Education can’t flip the statute on its head by administrative fiat,” Jennifer C. Braceras, vice president for legal affairs at Independent Women’s Forum, said in a statement. “And we are confident the courts will remind the department of this basic principle and strike down this rule as unlawful.” The Independent Women’s Forum, a national conservative group, was one of several groups that threatened legal action over the new Title IX rule, which was finalized late last week. Several Republican attorneys general also promised to sue President Biden in court over the rule. Although no lawsuits have been filed yet, statements and public comments on the rule offer a glimpse at the arguments likely to be used in federal court against the regulations. Rachel Rouleau, legal counsel for Alliance Defending Freedom, a conservative legal organization that’s also planning to challenge the new regulations, said in a statement that the rule “illegitimately redefines ‘sex’ in federal law.” “The Biden administration’s radical redefinition of sex turns back the clock on equal opportunity for women, threatens student safety and privacy, and undermines fairness in women’s sports,” Rouleau said. “It is a slap in the face to women and girls who have fought long and hard for equal opportunities.” The new rule replaces what the Trump administration put in place in 2020. Title IX of the Education Amendments of 1972 protects students at all levels of education from sex-based discrimination, and the new regulations expand the definition of sex-based discrimination to include bias based on sexual orientation and gender identity and will alter how colleges and universities respond to reports of sexual harassment and misconduct, among other changes … Russell, who now serves as an ambassador for the Independent Women’s Forum, added that the expanded harassment and discrimination definition infringes on the First Amendment, a concern raised by other conservative groups. Department officials pushed back on those concerns in the final rule, saying that harassing speech can only violate Title IX if the conduct “‘limits or denies’ a person’s ability to participate” in an education program or activity. “The department also strongly disagrees with claims that students will be, in the words of some commenters, subjected to ‘federally mandated censorship,’ a ‘civility code,’ or a ‘speech ban,’ or that the regulations will essentially prohibit ‘hate speech,’ ‘stifle the ‘marketplace of ideas’ on campuses,’ or enable people to ‘weaponize’ Title IX against those with whom they disagree on political, religious, and social issues,” officials wrote. “There is no basis for those claims in the text of the proposed or final regulations or our explanation of it.” Whether the potential legal challenges will be successful is unclear, especially since they haven’t been filed. However, previous challenges to Title IX regulations could offer some hints. Several lawsuits in 2020 challenging the Trump Title IX rule weren’t successful as the plaintiffs— Democratic attorneys general and advocacy groups supporting sexual assault survivors—either didn’t prove they had standing or that they would suffer irreparable harm if the regulations took effect. Andrew T. Miltenberg, a lawyer at Nesenoff & Miltenberg who specializes in Title IX cases and represents primarily students accused of misconduct, said he doesn’t see the initial legal challenges as “the true attack.” Instead, the more potentially powerful lawsuits will be those filed after colleges and K-12 schools begin to carry out the new rule. “If you want to have a compelling argument that may have the impact of changing the way one of these sections are handled, it should be, unfortunately, after the damage has been done,” Miltenberg said. He’s more concerned about the provisions changing how colleges respond to and investigate reports of sexual misconduct. The final rule puts incidents that take place off-campus or in study abroad programs under the college’s jurisdiction. That expansion, he said, is going to be problematic and lead to legal challenges. Miltenberg also worries about the department’s decision to end the current requirement that colleges hold live hearings with an opportunity for cross-examination to allow those accused to confront their accusers. “That’s something that is going to be tested very quickly, as soon as someone loses a Title IX case,” he said. Still, while Miltenberg sees problems with the new regulations, he said it’s not time to panic. “I’m interested to see how they are applied, and to the extent they’re applied in an inconsistent or unfair manner, or in a way that is not equitable to the parties, we’ll challenge them in court,” he said. “But I think we have a little bit before we get there.”

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