The Daily Signal - ‘Federal Overreach’: Lawsuit Aims to Stop Biden’s Title IX Rule Change

Episode Date: May 6, 2024

After the Biden administration released its new Title IX rule on April 19, it took less than two weeks for the Defense of Freedom Institute to file a lawsuit against it.  “We are asking the court to … basically stop the effect of the regulations for a variety of legal reasons," says Robert Eitel, the institute's co-founder and president. That's because the rule change is “simply unlawful,” he explained.  Among the changes to Title IX, the Biden administration is attempting to redefine sex to include gender identity and sexual orientation. Title IX is an education amendment that was signed into law by President Richard Nixon in 1972 and requires there be equal opportunities for men and women in schools across the country.  Eitel says the Biden administration’s attempt to redefine sex in Title IX is “federal overreach.”  The states of Louisiana, Mississippi, Montana, and Idaho filed the suit with the Washington-based Defense of Freedom Institute, a conservative nonprofit dedicated to providing policy and legal solutions within the spheres of education and the workforce.  Eitel joins “The Daily Signal Podcast” to discuss the lawsuit against the Biden administration’s new Title IX rule. He also explains what should be done about the ever-growing issue of student loan debt, and why President Joe Biden can’t legally issue mass student loan forgiveness.  Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Monday, May 6th. I'm Virginia Allen. After the Biden administration released its new rule on Title IX on April 19th, it took less than two weeks for the Defense of Freedom Institute to file a lawsuit against that rule change. Among the changes to Title IX, the Biden administration is attempting to redefine sex to include gender identity and sexual orientation within Title IX. Now the Defense of Freedom Institute is asking the court to block this new rule from taking effect because, as they argue, it's unlawful. Co-founder and president of the Defense of Freedom Institute, Robert Ital, joins us on the show today to explain the suit and what to expect in the near future. Stay tuned for our conversation after this. So what is going on with Ukraine? What is this deal with the border? do you feel about school choice? These are the questions that come up to conservatives sitting at parties, at dinner, at family reunions. What do you say when these questions come up? I'm Mark Geiney, the host of the podcast for you. Heritage Explains brought to you by all of your friends here at

the Heritage Foundation. Through the creative use of stories, the knowledge of our super passionate experts, we bring you the most important policy issues of the day and break them down in a way that is understandable. So check out Heritage Explains wherever you get your podcasts. Well, it is my pleasure today to be joined by the co-founder and the president of the Defense of Freedom Institute,

Robert Ital. Mr. Ithel, thank you so much for being with us today. We really appreciate it. I'm delighted to be here, Virginia. Mr. I tell, you have a long background within education. You previously served as Senior Counsel of the Secretary of Education

from 2017 to 2000 to 2020, and you were also the Deputy General Counsel of the U.S. Department of Education from 2005 to 2009. I want to begin by asking you to share a little bit about the mission of the Defense of Freedom Institute. Certainly. I have to say, before we start, that it is a great irony of my life that I have served two terms in a federal agency that I think actually should be abolished. So that is an inconsistency that I've had to live with and after cross to bear. That's mine.

But that said, every federal agency, if it's authorized by Congress, needs good governance. And so that's what I've attempted to do in the public service aspect of my career. But DFI was established by myself and my colleague at the department and friend Jim Blue, Jim served as Assistant Secretary for Policy for Secretary DeVos. I served as Secretary Secretary, as Secretary Senior Counselor and Regulatory Reform Officer. And we both left the department at the conclusion of President Trump's term of office in 2021, with the feeling that there was just not enough going on on the concerns. side of the ledger regarding education, policy, and law on the federal level.

That's not to say there weren't some great groups doing work in these areas, like Heritage, in AEI, in Manhattan, but there was not the kind of synergy that we saw exist on the left during our term of office. I will have to say that the leftists do a fantastic job of coordinating their resources. I think that has changed over the last several years, and we can talk about that. But when we were in office, there were times where we felt as though the, you know, sort of the conservative libertarian movement was not in sync with what we were trying to do in terms of deregulation, Title IX reform, and that more needed to be done. And so we found a DFI to sort of fill that vacuum.

And I think we have. And what's more, I think that the conservative movement since 2021 has done really a magnificent job in coming together, particularly on education issues, not just K-12 in school choice, but higher ed, civil rights policy as it relates to school, you've had, you've had a number of terrific organizations come into being like moms for liberty and parents defending education to join us with groups like heritage and Manhattan. You've got America First Policy Institute that's come into the space as well, America First Legal. So you've got a lot of new groups joining a lot of the older groups. And I think we now have that synergy, that attention

on education, particularly on the federal level that we didn't have in 2017. Yeah, there's certainly a lot of momentum behind it. I think so many Americans have seen behind the curtain of what's happening within the education system, both like you said with K-12, but also at the college level and that concern has created a lot of action. And you mentioned just a second ago Title IX reforms and that topic of Title IX is certainly in the news. a lot right now. This comes as the Biden administration in mid-April

announced a new rule to Title IX and this new rule changes the definition of sex within Title IX to include gender identity and sexual orientation. And that, in other words, means that a guy who identifies as a girl could use women's bathroom, opens the door for men to compete in women's sports. And right now, that new rule change is set to take effect on August 1st. But on April 29th, your organization, the Defense of Freedom Institute for Policy Studies, and the states of Louisiana, Mississippi, Montana, and Idaho, all together filed a lawsuit challenging this new rule change to Title IX. What exactly are you all seeking in this lawsuit? Well, just to put it in layman's terms, we are asking the court to, to, to, to,

stay in joint, basically stop the effect of the regulations for a variety of legal reasons. And the challenge is that we are, is based on the Administrative Procedures Act, which allows for certain parties to come in a challenge of federal regulation. And so, you know, from a, the top level, that's exactly what we're trying to do. We are requesting the court to, under the APA, to stay the effect of the regulations because they are, for a number of reasons, but one primary reason is that they're simply unlawful. And a perfect example of that, illegality is the strikingly unbelievable attempt by the Biden administration to define Title IX, to define sex under Title IX to encompass gender identity, which, interestingly,

the regulations do not define. That's a perfect example of sort of the federal overreach that's contained in these regs, and for which we're asking the court, and one of the bases that we're asking the court to stay or enjoin the effect of the regulations. What was the original purpose of Title IX? The original purpose of Title IX, I would say, is and continues to be, to prohibit discrimination on the basis of sex in educational programs and activities that receive federal funds from the Department of Education. That's the original purpose. And with this, there are, yes, please continue. No, please continue.

And importantly, though, there are exemptions to that non-discrimination requirement, one of which is athletics and another of which is housing to start living facilities. Congress from the get-go has said that there can be sex-separated housing facilities, and I think the department has always interpreted that to be bathrooms and locker rooms and showers and other intimate facilities, as well as separated athletics in certain contexts like football and basketball, wrestling, and things of that nature. And this is not the first time that Defense of Freedom Institute has weighed in on Title IX, has sought to defend Title IX, correct? We have seen as our central purpose, the preservation of Title IX, as it was originally understood by Congress in 1972 when President Nixon signed Title IX into law. We participate in this issue on a number of levels. The litigation is only one aspect of that. And I think that this

issue sort of underscores the way the way DFI kind of provides a unique contribution to this area of education policy. So, for instance, on Title IX, we have policy expertise on Title IX generally. We're also able to participate in the rulemaking process as experts filing a very sophisticated comment on proposed regulations as we did with the Biden administration in the last two years with their regulations. then litigate the regulation that comes out, as we are doing with our states, and then offer legislative reforms. We're working on a model Title IX code. We're working on a model Title IX regulatory code that sort of fixes some of these defects in the regulation

and makes clear what Congress intended in 1972 is sort of a legislative thing. fix. So you have this cycle of policy, regulatory work, litigation work, and then legislative reform in which we provide. And there are a lot of groups who do all this, but I think we're sort of unique in that we do the entire sort of life cycle of the issue. Yeah, that is unique and critical. So critical for right now. One of the other big issues that we are seeing in the news a lot right now in relation to education is debate over student loans. And the Biden administration, of course, has tried to forgive student loans. The court struck down Biden's massive student loan forgiveness plan that would have forgiven $10,000 for all borrowers, in some cases, up to $20,000. Biden continues to seek

loan forgiveness. What are the concerns that the Defense of Freedom Institute has with these loan forgiveness plans out of the Biden administration? Well, there's so, levels of concern one is simply just a fiscal concern we're we're a country that is that is the number changes it seems to be weekly but 34 trillion dollars in debt we're running annual deficits that i think range you know almost a two trillion dollars a year and here the bide administration is taken upon itself to engage as as the president did in last year with mass student loan forgiveness with the stroke of a pen. Now, the Supreme Court struck that down as an unconstitutional power grab in Biden v. Nebraska.

We followed Amica's brief in that case with five former secretaries of education. We're very proud to do that. But that's a perfect example of sort of the overreach that you've seen engaged in by the Biden administration. on this issue. Beyond that, the response to the Biden administration to that Supreme Court case has been pretty clever. What they've attempted to do is use the federal regulatory process to circumvent the court's opinion. And what they're doing is going back to some older statutes and using that authority to create new programs under the Higher Education Act that will forgive student loans and they would do this over a period of time. So rather than having

sort of this one order from the president directing the Secretary of Education to forgive a half trillion dollars of loans, the department has gone back and gone through a very laborious. federal regulatory process and has coming out with new rules in various different packages piecemeal to achieve the same effect. And that's what they're doing now. So they have a program which they ridiculously call the Save Program. It's an acronym and I don't remember what it stands for. But it is a program that is that is very generous in its benefits and is estimated by some

to cost the taxpayer half a trillion dollars over 10 years. There's another program that they, that they're proposing that's more of just a general debt relief type program that will cost the taxpayers, again, probably $150 billion over 10 years. And they're going to come out with more. So they're just going back to the table. They're using bureaucratic processes to get around the Supreme Court, and we're going to once again have challenges. In fact, there's a challenge, there's two challenges right now on one, one on the SAVE program that have been commenced by Kansas in Missouri, and those are starting to make their way through the courts now. I think within this conversation, the area of agreement between those on the political

left and right is college has gotten insanely expensive, and there has to be some sort of of change for students to be able to afford an education if they want to go to college. Of course, the massive disagreement comes when you talk about what the solutions are. What do you think? How do we address this problem of colleges continually charging more and more for the education, arguably maybe offering less and less when it comes to quality education? But for those that do want to go to college, how do we make that practical and separate these two things from massive government student loans being almost now, in some cases,

required for a student that isn't coming from a wealthy background to be able to go to college. There's a number of approaches. I think that the conservative movement has taken a, frankly, a little bit of a schizophrenic approach to this issue. On the one hand, there's the argument that the department should be completely abolished. And if you do that, that means you're also abolishing federal student aid. Do we want to do that? And so then the question becomes, and I think the answer is probably not. We probably want to have at least some federal assistance for those students who are deserving

to help them get to college. And so that's a critical point. So the question that becomes, you know, how do you do this? I personally believe that the federal student aid program, as it has presently constituted, is so screwed up that this administration has so messed it up with its loan forgiveness policies, with its loan, with its payment pause policy because of the pandemic that lasted three years longer than it should have. with all of its loan forgiveness programs. FSA as well as just an organization needs a house cleaning. You've got technological issues there with legacy software. There are some student loans for which they are still using a software called Cobalt,

which is decades old. It needs to be sunsetted and we need to create an entirely new, paradigm for the federal role in higher education financing. My personal belief is that should be primarily a privatized lending with perhaps some government incentives to assist with that, perhaps an increase in Pell grants to assist students who are truly disadvantageous and are deserving to go to college. The other problem, though, is there's this default that every kid in high school when they graduate should go to college.

And I think that's a problem. And I think there are a lot of people who are on board with that notion that there are a lot of honorable trades and occupations that students could pursue. They don't involve going to a four-year college where that student needs either vocation. training or perhaps one year of post-secondary education so that they can obtain a certificate or perhaps two years for an AA degree where they're getting training in a specific trade. And when I say trade, I mean that expansively. I'm not talking about just plumbers. I'm talking about cybersecurity, technological type work.

And we don't do enough for the, kids. We don't do enough for those students who don't want to go to college, don't want to go into the military. I mean, really think about it. What does a student, a graduating high school student do if they don't want to go to college or they don't want to go to military? Where do they go? Yeah. Some of them will go to career colleges. But I think that as a country, we need to give a lot more thought to what we do, what opportunities are provided and what federal assistance, if any, is provided to those kids who don't want to go to college. That's critical. Is anyone doing that well right now? Are there any organizations that are working

to really show students, hey, these are your options, apart from just a four-year degree or the military? Yeah, there are a lot of organizations that are engaged in the issue, perhaps the most well-known as Mike Roe works. He's done a fantastic job, a sort of shedding light on this issue. The Cicero Institute, a former colleague of mine, but I named Michael Brickman, has focused on this workforce issue. He has been a leader in focusing attention on federal and state job requirements that require, for instance, a college degree when in fact the requirements, the duties of the job really don't require a college degree. And so during the Trump administration, Michael actually was involved in an initiative to change federal requirements regarding college degree requirements

to basically remove them from many job categories. And that's also happened on the state level. as well. I believe Maryland has, well, several states have engaged in that activity. Yeah. Move, remove that unnecessary requirement of having a college degree. As folks are thinking about this topic of education, I know that the Defense of Freedom Institute provides so many great resources, reporting on keeping individuals up to date about what are these big issues within education that we need to be following? and tracking, how can individuals follow your work and also seek to get involved if they would like to do so?

Just go to DFIPolicy.org, look at our website, sign up for our email lists, and then follow us on social media. We have active social media presence on Facebook, Instagram, Twitter, now known as X. we'd be delighted to have people as followers. We communicate a lot over social media, and that's probably the best way of keeping in touch with DFI is doing. Excellent. Thank you so much, Mr. I Tal. We really appreciate your time today.

It was my pleasure. Thank you so much. With that, that's going to do it for today's episode. Make sure to check out Top News this afternoon. The Daily Signal's Top News Edition is our weekday news edition, where we bring you the top news of the day. These are the headlines that you don't want to miss to stay informed on what is happening in our world.

That show comes out every weekday around 5 p.m. And make sure that you subscribe to the Daily Siddell podcast, you never miss out on new shows. Please also take a minute to leave us a five-star rating and review. That really means a lot to us, and it helps us to spread the word to more listeners, and also to know what you would like to see more of on the show. Have a great rest of your Monday. We'll see you right back here around 5 p.m. for top news.

The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation. Executive producers are Rob Blyui and Kate Trinko. Producers are Virginia Allen and Samantha Asheris. Sound designed by Lauren Evans, Mark Geinney, and John Pop.

To learn more, please visit DailySignal.com.