Santa Barbara Parents, Students, Teachers and Administrators Beware!

By Brent E. Zepke, Esq.

Education Department Secretary Miguel Cardona, with the support of President Joe Biden, are (effective August 1, 2024), by extending coverage of Title IX, greatly adding to the duties, and perhaps liabilities, of parents, teachers and administrators, and everyone else associated with the educational process.

The following is a summary of some regulations under Title IX, with my comments in italics. 

1. Defines sex as “Discrimination on the basis of sex includes sexual stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.” (This regulation expands the definition of sex-based discrimination by including sexual orientation and gender identity.)

2. An employee, agent, or other person authorized by the recipient to provide an aide, benefit, or service under the recipient’s education program or activity, explicitly or implicitly, conditioning the provision of such aide, benefit, or service on a person’s participation in unwelcome sexual conduct. (This extends the coverage way beyond employees of the schools, and the coverage to include virtually anyone contributing to the school in any way, such as sponsors of school activities or events.)

3. Unwelcome sex-based conduct that is sufficiently severe, or persuasion that, based on the totality of the circumstances and evaluated subjectively and objectively, denies or limits a person’s ability to participate in or benefit from the recipient’s education program or activity. (This eliminates any objective evaluations of allegations so that, for example, any student, for any reason, at any time, without any proof, can subjectively accuse any teacher, guidance counselor or coach of violations of almost anything in, or out of the classroom.)

4. Conduct that occurs in a building owned or controlled by a student organization, a recipient has an obligation to address a sex-based hostile environment under its education program or activity, even if the hostile environment occurred outside the recipient’s education program or activity, or outside the United States. (“Hostile environment” is too broad to be defined, and “outside the recipients’ education program or activity” exceeds the jurisdiction of Title IX.)

The new regulations also provide that informal resolutions are available prior to a determination of a policy violation, that they must be voluntary, are not allowed when the Respondent is an employee, and the Complainant is a student; no formal complaint required.

Education Department’ Authority    

The 10^th Amendment of the United States Constitution provides:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

How did the federal government get the power to regulate education since these powers were “not delegated to the United States,” but were “reserved for the people,” which means the states?

Department of Education 

President Andrew Johnson, in 1867, perhaps to help the struggling country unify after the Civil War, created the federal Department of Education for the limited purpose of collecting information and statistics to help schools.

Some 105-years later, as the country was struggling to unify after the Vietnam debacle, President Richard Nixon signed the Education Employment Opportunity Act of 1972, that provided under Title IX:

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.”

With the stroke of a pen politicians used “federal financial assistance,” aka “your money,” to nullify your states’ rights under the 10^th Amendment.  

President Jimmy Carter, in 1979, raised the Education Department to cabinet level, and his Education Department’s Office for Civil Rights (OCR) regulations indicated that Title IX was limited to athletic issues by providing that male and female athletes should receive equivalent treatment. 

Republicans’ Response

Multiple lawsuits have been filed to block the Biden administration’s new Title IX regulations; the lawsuits accuse the Education Department (Miguel Cardona) of acting illegally and overreaching. 

One lawsuit was filed by the states of Louisiana and Alabama to block the implementation of the new Biden-Cardona regulations on the basis that they contradict the text and purpose of Title IX and will, for example, prohibit gender-specific facilities, such as restrooms and locker rooms. 

Another lawsuit was filed by Idaho, Louisiana, Mississippi, and Montana, along with the Defense of Freedom Institute (DFI), alleging that “The final rule is an affront to the dignity of families and school administrators and is not even close to legal.”

Another similar lawsuit was filed by Alabama, Georgia, Florida, and South Carolina. 

It is rumored that Texas and Virginia are also declining to implement the regulations.

The above lawsuits, filed by Republican controlled states, illustrates that Republicans respect the Constitution and oppose the extension of the federal government. Failure to oppose the regulations indicates the opposite for Democrats.

Author’s note: Based on the prohibition of any regulations issued by a federal agency to exceed the scope of the impowering statute, I agree with the above lawsuits. 

For those who wish to support woman’s sports and the original Title IX protections, mark your calendars. On Sunday, June 23rd (the 52nd anniversary of the signing of Title IX) an uplifting celebration featuring local speakers and coaches will be held at the Santa County Courthouse at the corner of Figueroa and Anacapa streets in downtown Santa Barbara from 12 to 1:30p.m. This event will be open to the public. For more information please email title9event@gmail.com