I’ve been waiting for smart, reasonable thinkers on the Left to uncover both the contradictions and the lawlessness at the heart of the Department of Justice’s new interpretations of Title IX. Thanks to Harvard Law School’s Jeannie Suk, the wait is over. Writing in the New Yorker, she exposes both the contradictions inherent in the administration’s new Title IX crusade and its legal flaws.
First, the lawlessness. Speaking of parents’ concerns about the DOJ’s “Dear Colleague” letter providing “guidance” that effectively requires public schools to expand Title IX to encompass “gender identity,” Suk says this:
Quite apart from a possible legal right, it is reasonable to think that the appropriate bathrooms for transgender people to use are ones fitting their gender identities. But the parents’ rhetoric of federal overreach on Title IX is not off base. It is of course unexceptional for the federal government to enforce federal law. But, unlike the Education Department’s many regulations, the Dear Colleague letter is not law, because it wasn’t enacted through legal procedures, involving public input, that federal agencies must follow when making law. The Education Department’s rule that schools must provide prompt and equitable grievance procedures to hear complaints of Title IX sex discrimination results from that required process and is legally binding. But the agency chose not to have such a process for its missive on transgender students.
Moreover, Suk notes that this tactic is old hat for administration lawyers:
This is a familiar but controversial O.C.R. strategy. Its last Dear Colleague letter about Title IX, in 2011, said that sexual violence is a form of sexual harassment and is therefore sex discrimination. It detailed how colleges and universities must discipline perpetrators and prevent such incidents. It too came with a threat to cut off federal funds, and O.C.R. proceeded to investigate hundreds of schools for noncompliance. (O.C.R. found Harvard Law School, where I teach, in violation of certain terms of the Dear Colleague letter. I have been critical of the federal pressure on schools to adopt policies and procedures that deny fairness to accused students in the name of Title IX compliance.) Several lawsuits claiming that O.C.R. unlawfully promulgated and enforced the contents of its Dear Colleague letter on sexual violence are currently pending in the federal courts.
And because the administration is literally making up the law, it’s unsurprising that contradictions are emerging. Again, here’s Suk:
But there is also a growing sense that some females will not feel safe sharing bathrooms, shower rooms, or locker rooms with males. And if a female student claimed that a bathroom or locker room that her school had her share with male students caused her to feel sexually vulnerable and created a hostile environment, the complaint would be difficult to dismiss, particularly since the federal government has interpreted Title IX broadly and said that schools must try to prevent a hostile environment. This is not wholly hypothetical. Brandeis University found a male student responsible for sexual misconduct for looking at his boyfriend’s genitals while both were using a communal school shower. The disciplined student then sued the school for denying him basic fairness in its disciplinary process, and a federal court recently refused to dismiss the suit.
The administration is speaking out of both sides of its mouth. On the one hand, it tells schools and colleges that men are such voracious sexual predators that they must take drastic steps to protect women and girls — including by denying free speech rights and limiting rights of due process. On the other hand, it’s telling those same schools and colleges that men are so trustworthy that they must be allowed in bathrooms, showers, and bedrooms — no questions asked. What’s a school to do?
Schools can and should sue to set aside both of the administration’s lawless edicts. Title IX cannot be read so broadly as to diminish the constitutional rights of (mostly) male students, nor can it be expanded without Congress’s consent to include “gender identity” as a new protected class. In the meantime, it’s past time for Congress to step in and protect its lawmaking prerogatives. But that requires braving the wrath of the social justice warriors — something not all GOP legislators are prepared to do.
Finally, in a campus culture where the slightest dissent from activist demands can lead to calls for termination and retaliation, Professor Suk and her colleagues should be applauded for standing up for reason, due process, and the rule of law. They are doing heroic work.