Sec. of Education Arne Duncan

On Tuesday, the Federalist Society’s Regulatory Transparency Project released a paper about illegal overreaching by the Obama-era Education and Justice Departments, which resulted in unwise federal policies that persist today.

The paper, written mostly by people with a civil rights background, examines three areas in which the government attempted to micromanage educational institutions by imposing new rules that never went through the legally-prescribed rule-making process and purported to do so based on anti-discrimination statutes passed many years ago.

These rules dealt with three areas: (1) transgender bathroom, locker, and dormitory room access under Title IX, a statute which bans discrimination based on “sex,” not “gender identity”; (2) investigations by colleges and schools of sexual assault and harassment claims, also under Title IX; and (3) school districts that suspend more students of one race than another, or whose discipline policies have an unintentional “disparate impact,” under Title VI, a statute which bans intentional racial discrimination.

I authored the section of the paper dealing with topic (3), the 2014 Obama administration “Dear Colleague” letter that…

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