WHEN THE PRONOUN POLICE COME FOR EIGHT-GRADERS:
Title IX of the Education Amendments of 1972 was enacted long before Congress could have imagined today’s progressive dogma that grammar should reflect, through pronouns, the most advanced thinking about gender fluidity. Title IX’s operative language says no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination” in education.
This language has been reasonably taken to encompass sexual violence, unwanted touching and such “unwelcome conduct” as persistent spoken sexual innuendo, stalking, etc. Now, however, the Wisconsin district, which is perhaps proud of its progressive improvising, has made this category of conduct elastic enough to encompass mispronouning. The district’s behavior is trickle-down lawlessness that stems from the arrogance and cynicism of the U.S. Education Department.
Making a mockery of Title IX illustrates what some progressive theorists call “dynamic statutory interpretation,” meaning law enforcement entirely untethered from congressional intent — actually, from law. In 2014, Catherine Lhamon, an Education Department assistant secretary for civil rights, sent an explanation of a 2011 “Dear Colleague” letter to people who are in no sense “colleagues” of federal bureaucrats: college administrators. She directed them to comply with 66 pages of “guidance” on sexual harassment policies. Many of the policies produced campus kangaroo courts in which persons — almost always young men — accused of sexual misbehavior are routinely denied due process.
Nationwide, accusers are identified, in the language of prejudgment, as “survivors.” The accused are denied the right to question their accusers and can be convicted on a mere “preponderance of the evidence,” not evidence beyond a reasonable doubt. By one recent count, there are more than 700 due-process lawsuits from victims of make-believe courts on campuses, seeking justice in real courts.
R. Shep Melnick, a Boston College professor and co-chair of the Harvard Program on Constitutional Government notes this: Lhamon breezily says she resorted to explicating the “Dear Colleague” letter, thereby evading the Administrative Procedure Act’s rule-making requirements, because the 66 pages were, in her words, merely “an explanation of what Title IX means.” Sixty-six pages of “explanations” that, if not adhered to, can result in federal compliance investigations and termination of the institutions’ federal funding.
In 2014, Lamar Alexander, the Tennessee Republican who was a former university president and the senator most conversant with higher education, asked Lhamon who gave her the power to issue detailed, effectively mandatory “explanations.” With smug hauteur, she said: “You did when I was confirmed.”
President Biden has brought her back.
Tar and feathers are indicated, but abolishing the Department of Education would suffice.