The Red State Revolt Against Biden’s Title IX Rules Heads to Court

Five states file suit against Biden’s Department of Education to halt implementation of the new civil rights in education regulations.

AP/Ron Edmonds, file
James Madison University students rally outside the Education Department at Washington in 2006. AP/Ron Edmonds, file

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 officials 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 officials, 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 effect 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 effective 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 plaintiff 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 effective 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.”

The New York Sun

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