CounterCurrent: Week 0f 02/03/25
At the end of last week, the Trump Education Department (ED) reaffirmed the 2020 Title IX Rule written by former Education Secretary Betsy DeVos. This is the latest victory in a slew of overhauls that return common sense to the government and its departments.
The announcement on Friday by the ED was sent via a “Dear Colleague” letter to K-12 schools and colleges and universities instructing that the Office of Civil Rights will enforce the 2020 Trump administration Title IX Rule once again. This means that Title IX will uphold stronger due process protections for students and extricate gender ideology introduced by the Biden administration. This move by the ED has restored sanity to Title IX, agreeing with the Kentucky court decision on January 9, 2025 which ruled the Biden Title IX rule to be unlawful. The ED’s “Dear Colleague” letter also made mention of Trump’s Executive Order on “Defending Women from Gender Ideology Extremism,” reaffirming that “sex” does not include “gender” but is defined as an immutable, biological characteristic at birth. All good—and correct—things.
We must not forget that Title IX has a long history fraught with abuse and overreach.
The original intent of the Title IX policy—signed into law by President Nixon as part of the Education Amendments of 1972—was simply written to protect individuals from discrimination based on sex. This applied to all schools receiving federal funding. Title IX was quickly extended beyond equal educational opportunity to encompass athletic participation for women in higher education as well—requiring schools to give equal funding for women’s teams. By the 1990s, the definition of “sex discrimination” under Title IX was expanded to include “sexual harassment”—an idea that evolved rapidly and was later weaponized by the Obama administration’s Office for Civil Rights. Dear Colleague, a report by National Association of Scholars’ policy director Teresa Manning details the full history of Title IX—read it if you haven’t already—but for now, let us set the stage for what the Obama-era weaponization of Title IX ultimately led to,
In 2011, Obama’s Office for Civil Rights issued a guidance letter now known as the ‘Dear Colleague Letter’ (referenced as the ‘DCL’) announcing that sexual violence is a form of sex discrimination prohibited by Title IX. The DCL went on to require all schools receiving federal funds to take prescribed steps to investigate, find, and punish sexual violence—with no reference to educational access—via their Title IX offices, or lose funding. It was yet another unprecedented expansion of a discrimination law to cover not only minor faux pas but also violent criminal offenses formerly handled almost exclusively by prosecutors, judges, and juries.
Additionally,
The 2011 DCL quickly became controversial as yet another instance of illegal agency law-making. But most concerning were the DCL’s features favoring complainants at the expense of the accused—that is, the DCL eroded traditional protections afforded those accused of misconduct, such as the presumption that one is innocent until proven guilty.
In his first term, Donald Trump’s ED, headed by Betsy DeVos, undid the Obama-era madness through a formal Title IX rule, stopping kangaroo courts fueled by ideological animus from trampling due process rights. This is what set the stage for the Biden administration’s attempt to rewrite Title IX, and thankfully, its failure to do so.
The latest step by ED is a move in the right direction to uphold constitutional rights and due process protections—but even the 2020 Title IX rule is not perfect. The ED would do well to also heed the recommendations of our Dear Colleague report if it looks to secure Title IX against future misuse.
A few worth noting to strengthen Title IX protections and proceedings are as follows.
First, we must remember that equal access to education has been achieved. Title IX’s original intent was to protect individuals from discrimination on the basis of sex—it was women who benefited from this protection most when it came to educational opportunity. Now, it is safe to say based on data that women fare better and achieve higher levels of educational success than men. Manning notes in the report that the public would do well to be made aware of women’s educational gains under Title IX, and that it is necessary for any discussion of Title IX reform going forward.
Second, schools should publicize due process protections. “The easiest way to do this would be to integrate such information into first-year orientation and then to tack such content on to any class, program or seminar that discusses Title IX and sexual misconduct,” said Manning. Pressuring schools to disclose due process protections would stop abuse of the law behind closed doors.
Lastly, Title IX offices must hire staff members who have criminal justice experience. This will not only ensure that due process rights are respected, it will prevent gross overreach of law and unqualified ideologues from permeating positions of power in higher education. Colleges and universities need less inadequacy, not more. Better yet, law enforcement ought to handle cases of sexual harassment and assault, not Title IX offices.
With these Title IX advances, education is being pointed back to the right path, but lest we not forget, the work is not done yet.
Until next week.
CounterCurrent is the National Association of Scholars’ weekly newsletter, written by the NAS Staff. To subscribe, update your email preferences here.
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