Dive Brief:
- Fifteen Republican state attorneys general are urging the U.S. Department of Education to abandon its efforts to rework the regulations under Title IX, the federal law barring sex-based discrimination in schools.
- The Education Department is due this spring to release its proposed rule detailing how colleges must look into and potentially punish sexual violence on campus. The states' top lawyers, led by Montana Attorney General Austin Knudsen, argued in a letter Tuesday that the current regulation issued by former Education Secretary Betsy DeVos protects students, sets clear expectations for responding to sexual misconduct and should not be altered.
- The forthcoming draft rule also reportedly will protect transgender students from discrimination under Title IX. The attorneys general wrote in their letter they are prepared to take legal action against such provisions.
Dive Insight:
A new Title IX rule would fulfill President Joe Biden's campaign pledge to overturn the DeVos-era one, which sets up courtroom-like hearings for evaluating sexual assault cases. During these proceedings, students accused of sexual violence and their accusers can cross-examine each other through an adviser.
Advocates for survivors of sexual violence and other critics say the process is too cumbersome and dissuades reporting.
Due process activists argue Title IX systems were broken prior to the DeVos rule. The Obama administration issued guidance in 2011 that brought new awareness to campus sexual violence. However, that guidance was mired in allegations that it pressured colleges to find students responsible for sexual misconduct.
The Biden administration had said it plans to issue a draft version of its rule this month. However, the Education Department scheduled meetings to discuss the regulation through May, implying a potential delay.
The 15 attorneys general — from Alabama, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota and Texas — believe the Education Department should dump its forthcoming rule altogether.
They wrote to Catherine Lhamon, who leads the Education Department's Office for Civil Rights, telling her the current regulation "provides essential provisions protecting free speech and academic freedom."
The lawyers took aim at Lhamon's track record at the helm of OCR during the Obama administration from 2013 to 2017. They wrote that she contributed to "a constitutional and regulatory mess" on Title IX and that she should recuse herself from the rulemaking process.
"OCR didn't merely put its thumb on the scale of justice under your leadership, it became a biased institution," they wrote. "Investigations were not an inquiry into discrete complaints, but instead fishing expeditions into every aspect of schools' adjudication process and campus life."
Lhamon faced similar lines of criticism during her confirmation process, during which Republican senators said her work under the Obama administration should disqualify her from returning to head OCR. Lhamon said during her initial term at OCR that she would revoke federal funding to institutions that violated Title IX, though this ultimately never occurred.
The Education Department said in a statement Wednesday that it "is committed to ensuring that schools are providing students with educational environments free from discrimination, which is a goal we hope all educators and leaders share."
It did not provide a response to the letter's criticism from Lhamon.
The attorneys general also pointed out that a new Title IX rule protecting transgender students' identities would conflict with laws in their states. Several states, including Montana and Texas, have passed laws banning transgender athletes from competing in sports that align with their gender identity.
"We are prepared to take legal action to uphold Title IX's plain meaning and safeguard the integrity of women's sports," the attorneys general wrote.
