Republicans in Congress, who have loathed President Biden’s decision to expand protections for LGBTQ+ students in the new Title IX rule since it was rolled out, took the next step Thursday to overturn the rule—setting up a potential clash with the Senate and the White House.
On a party-line vote, the House Education and Workforce Committee passed a resolution of disapproval designed to block what Republicans call an unprecedented redefinition of a decades-old civil rights law. The Biden administration finalized its Title IX overhaul in April, and it will take effect later this summer unless Congress or the federal courts block it. (Late Thursday evening, a federal judge issued a preliminary injunction, blocking the rules from taking effect in Louisiana, Mississippi, Montana and Idaho.)
The resolution invokes the Congressional Review Act (CRA), which allows Congress to overturn a federal rule within 60 days. Under the act, a simple majority of lawmakers in the House and Senate can vote to block the administration from carrying out a rule, though a CRA resolution is subject to a presidential veto.
The Title IX resolution was one of nine bills considered during Thursday’s markup session to review bills and send them to the full House for a vote—but easily the most contentious. The committee also advanced proposals to set new standards for how colleges and universities respond to reports of antisemitic harassment or other civil rights violations as well as to prevent student athletes from unionizing.
“Together, these nine bills express the commitment of the Committee to enhancing the safety, security, and rights of students, parents, and workers across our nation,” North Carolina representative Virginia Foxx, the Republican chair of the committee, said in her opening remarks.
Representative Bobby Scott of Virginia, the top Democrat on the committee, said that while he appreciated the inclusion of several bipartisan bills in Thursday’s markup, the other, more partisan bills on the docket would further the Republicans’ “extreme agenda” and “inject divisive partisan politics” into schools and colleges.
“I am deeply concerned that we are also considering a handful of partisan bills that neglect our responsibilities to students and families,” he said in his opening remarks.
While some bills did attract bipartisan support, partisan divisions—and the exchanges between members—were sharp when it came to Title IX.
“My Democrat colleagues have said that overturning this rule would be an act of hate,” said Representative Mary Miller, an Illinois Republican who co-sponsored the resolution. “I say that Joe Biden’s Title IX rule is an act of hate. Someone must stand up and say ‘enough.’”
She and other Republicans took particular issue with provisions in the Title IX rule that expand sex-discrimination protections to LGBTQ+ students. Republicans said that those changes would undermine years of efforts to provide educational opportunities to girls and women and claimed it would require schools to allow “biological men” into women’s locker rooms and bathrooms.
“This joint resolution is about protecting our daughters and their ability to learn and compete in a safe environment,” said Representative Lisa McClain, a Michigan Republican. “President Biden has proven that he will do anything to appease the radicals in his party, rather than defend the success of women athletes and Title IX. Our daughters deserve better.”
The expanded protections are one of several changes in the new regulations, which also shift how colleges respond to and investigate reports of sexual misconduct and harassment, support pregnant and parenting students, and protect students from discrimination based on sex. The new rule replaces the 2020 regulations put in place by the Trump administration.
Democrats pushed back and defended the new rule as a “triumph.” They argued the Biden administration’s expanded definition was in line with the Supreme Court’s 2020 decision in Bostock v. Clayton County, which said discrimination based on sex under Title VII of the Civil Rights Act of 1964 included discrimination based on sexual orientation or gender identity.
Representative Mark Takano, a California Democrat, said that the new rule simply clarifies how the Bostock decision should be interpreted in school environments.
“This is a population of students in need,” he said. LGBTQ+ students, he added, face hostility at school and experience higher rates of anxiety, depression, suicidal thoughts or homelessness. “It’s our obligation to support these kids.”
Takano said the CRA would have “disastrous consequences” for those students. “This is a cruel, dangerous and shameful waste of this committee’s time during Pride Month, nonetheless,” he said.
The CRA resolution is unlikely to succeed after the House likely approves it, given that Democrats control the Senate and White House. But the debate gives Republicans another avenue to criticize the Biden administration and highlight their many issues with the new rule.
“Sex differences are biological, an inescapable fact acknowledged by most Americans,” Foxx said. “The Biden rule to allow men to intrude into women’s spaces and take opportunities away from women is deeply unsettling and, frankly, unnatural.”
The new Title IX regulations lower the standard for sexual harassment, make it easier for victims to report sexual harassment and roll back a number of requirements put in place by the Trump administration that were aimed at protecting the rights of students accused of misconduct.
“Under the previous administration, Secretary [Betsy] DeVos advanced a discriminatory and harmful misinterpretation of Title IX,” Oregon representative Suzanne Bonamici, a Democrat, said of the former Secretary of Education. “Her approach diminished the rights of survivors of sexual assault and also failed to enforce civil rights protections for LGBTQ+ students. The Biden administration has worked hard to fix this misguided policy and the proposed regulations take into account hours of listening sessions and more than 150,000 public comments.”
Foxx took issue with the Democrats’ criticisms of the 2020 regulations. “The expansion of what constitutes sexual harassment will further stifle students’ free speech rights,” she said. “The rule strips due process rights of students accused of violating sexual harassment policies.”
Blocking Student-Athlete Unionization
In another party-line vote Thursday, the committee approved a bill sponsored by Representative Bob Good, a Virginia Republican, that would prevent student athletes from being considered employees of a college or university. The legislation follows a historic vote from Dartmouth College’s men’s basketball team to form the first student-athlete union in college sports.
Lawmakers on both sides of the aisle are also increasingly interested in legislation to reform college sports, which is in the middle of an upheaval, and set a national standard on name, image and likeness rights. However, Good’s bill only concerns the employee states of student athletes.
Good, who led a hearing earlier this spring about unionization in college sports, argued that classifying student athletes as employees puts their athletic and educational opportunities at risk and threatens their new freedom to negotiate NIL deals and transfer colleges without penalty. He and other Republicans criticized the National Labor Relations Board for its decisions that paved the way for the Dartmouth vote.
“If left unchecked, these unprecedented decisions will expose institutions to massive new liabilities and much higher costs to maintain a college athletes program,” Good said.
Bobby Scott countered that despite the legislation’s name, the Protecting Student Athletes’ Economic Freedom Act, “the only freedom the bill protects is Republican’s freedom to strip varsity athletes from their rights under fundamental labor and employment statutes.”
“There’s a lot of issues involved with this and it’s premature to start legislating,” he said.
Civil Rights Protection Act
After several hearings about campus antisemitism over the last six months, the committee considered the first piece of legislation Thursday to specifically address the issue. But Democrats said the committee rushed the bill—released Friday—to markup and most couldn’t support it.
The Civil Rights Protection Act, sponsored by Oregon Republican representative Lori Chavez-DeRemer, would require colleges to publicly detail how they investigate complaints related to Title VI of the Civil Rights Act of 1964, which protects students from discrimination based on shared ancestry, including antisemitism. Under the bill, institutions would also have to designate an employee to coordinate Title VI compliance and adhere to new standards for investigating complaints, such as notifying complainants whether an investigation was opened in response to their report.
“Across the country, colleges and universities have repeatedly failed to protect Jewish students from antisemitic protests and riots,” Chavez-DeRemer said. “It has exposed a dire need for transparency and common sense standards for these institutions to follow when addressing discrimination. My bill, the Civil Rights Protection Act, would break down barriers and ensure students have avenues through which to protect themselves and their peers.”
If the legislation becomes law, the Education Department’s Office for Civil Rights (OCR) would have to provide the committee with monthly briefings on Title VI discrimination and make some changes to how it handles Title VI complaints. Investigations, for instance, would no longer be closed because the complainant filed a lawsuit involving the same allegations, which is the current practice.
Scott and other Democrats said that they appreciated the legislation, but were concerned about adding more work to OCR’s plate without providing additional funding and other potential unintended consequences. Despite voting against the bill, Scott did commit to work with Foxx and her team on the legislation.
“Regrettably, the legislation in its current form does not address current funding gaps within the Department of Education’s Office for Civil Rights, and I fear it will place an even greater burden on an already overwhelmed Office with a huge backlog in cases,” Scott said.
Representative Kathy Manning, a North Carolina Democrat, suggested that the committee mark up her own bipartisan legislation, the Countering Antisemitism Act, which she said would address the issue more comprehensively than Chavez-DeRemer’s bill. Manning’s bill would create White House and Education Department positions focused on antisemitism and require the FBI and other agencies to produce an annual threat assessment of antisemitic violent extremism, among other provisions. Still, she was the lone Democrat to vote in favor of the legislation.
“Nevertheless, here we are,” Manning said. “We have a crisis of antisemitism on our campuses … This is a five-alarm fire. I want to do whatever we can do to stop that isolation, harassment and discrimination of Jewish students on our college campuses.”
