New Title IX: 37 Words in 1972; Now Over 400 Scary Pages Long

 In early July, Judge John Broomes of the District of Kansas ruled that the DOE lacked authority to expand Title IX to include discrimination based on gender identity and that the new version was so "Vague and over broad" as to chill speech on campus.

An earlier Inside Higher Ed article made clear, "Broomes noted that the order doesn't prevent a school or college from adopting new policies. But the Education Department can't enforce the new Title IX rule or impose consequences for those that fail to comply." Broomes' ruling also extended to any school attended by members of Young America's Foundation, Female Athletes United, or Moms for Liberty because these organizations joined the states in suing the DOE. The Biden administration made an emergency application to SCOTUS to partially lift the court's stays.

In a June 24 interview, Donald Trump pledged to move the DOE "Back to the states." Suddenly, Title IX is part of the presidential race.

Understanding the furor requires returning to the basics of the new Title IX. The basics are three provisions that expand the definition of sexual discrimination and its application.

The new Title IX is called an overreach because it both exceeds, and runs contrary to, the Administrative Procedure Act that governs the procedures of administrative law.

The revised Title IX states, "Because Title IX does not apply extraterritorially, it does not apply to conduct that occurs outside of the United States." But almost immediately the text "Clarifies": ...a recipient does have a responsibility to address a sex-based hostile environment...in the United States, even when some conduct alleged to be contributing to the hostile environment occurred...outside of the United States, including in a study abroad program.

The concerns are well summarized by the abstract of a journal article posted at Stanford Law: "New Title IX Regs Radically Revamp Campus Disciplinary Proceedings - But is Due Process the First Casualty?" The abstract states: Of particular concern are: The adoption of the "Single-investigator" model option under which those investigating the allegations and initiating charges can also determine the accused's ultimate factual guilt; the move to a lower default standard of proof for establishing violations; the removal of the accused's right to a live hearing; and the elimination of the right to present expert witness testimony. 

https://mises.org/mises-wire/new-title-ix-37-words-1972-now-over-400-scary-pages-long