By Sam Frescoe,
Veteran’s Recall
http://veterans-recall.blogspot.com/
On 3 Dec 2015, the Township High
School Board faced a decision to either accept or decline the settlement
offered by the Department of Education Office of Civil Rights (OCR) for an
alleged Title IX violation. The district position was that reasonable
accommodations were already in place and acceptable. On 3 Dec 2015, the
Township High School Board District 211 of Palatine, IL voted (5-2) in favor of
accepting the settlement.
[i] [ii] [iii]
The purpose of this post is to briefly
examine the law and government actors associated with this case. My intent is
to develop some insight into why this situation came about and concluded as it
did. My hope is to gain a better understand of what is happening to American society
and its discourse.
This post will read like a
technical review. Unfortunately, due to the subject matter, this is going to be
an unavoidable fact. However, I hope that I can simply and sufficiently state
what I was able to discover during my research, and bring it all together so
it’s more easily understood.
What do you know about Title IX?
Title
IX is a comprehensive federal law that prohibits discrimination on the
basis of sex in any federally funded education program or activity. On June 23,
1972, the President signed Title IX of the Education Amendments of 1972, 20
U.S.C. §1681 et seq., into law. The Department of Education has issued
regulations on the requirements of Title IX, 34 C.F.R. § 106.1et seq.
How does the government address Title IX violations?
The OCR investigates Title IX
complaints. The OCR mission is to ensure equal access to education and promote
educational excellence throughout the nation through the vigorous enforcement
of civil rights. [iv]
The OCR enforces federal civil rights laws that prohibit discrimination by
educational institutions on the basis of disability, race, color, national
origin, sex, and age, as well as the Boy Scouts of America Equal Access Act of
2001. [v] Particular
focus is paid to enforcing the implementing regulations under 34 CFR Part 106. [vi]
ROE for Investigations
In the OCR v District case (OCR Case # 05-14-1055) the OCR
made its ruling using a “preponderance of evidence” standard. [vii] There
are several items of interest here: the role of the OCR, the degree of the evidence,
and the duration of the investigation.
First, as stated before, the OCR is the agency responsible
for enforcing federal civil rights laws that prohibit discrimination by
educational institutions. To this end, the OCR issued a Case Processing Manual
(V1.1), dated Feb 2015, that provides the procedures to promptly and
effectively investigate and resolve complaints.[viii]
This guide was intended to clarify the role of the OCR.
Second, in civil matters, there are two degrees of evidence:
preponderance of evidence and clear and convincing evidence. The preponderance
of the evidence standard is the least stringent. A preponderance of the
evidence simply means that one side has more evidence in its favor than the
other, even by the smallest degree. The burden of proof is on the plaintiff
(the party bringing the lawsuit) to show by a "preponderance of
evidence" or "weight of evidence" that all the facts necessary
to win a judgment are probably true. [ix] The Case Processing Manual specifically
states that the OCR will determine the outcome
of investigations using a preponderance of the evidence standard. [x]
Third, in this case the duration of the OCR investigation was
at/near two years. After a review of Title IX, 34 CFR Part 106, and the Case
Processing Manual, I was not able to determine any hard guidance describing how
long an investigation should last. I found that investigations must be
“timely.”
Putting it together…The OCR can investigate for as long as
they wish until they determine a violation can be substantiated for any reason
and/or by the smallest margin.
Just the Facts
I searched 34 CFR 106 for specific key words in the hope that
I could discover some useful definitions.
The term “trans” is mentioned multiple times as a verb for
exchanging custody of property and monies.[xi]
The term “sex” is mentioned multiple times as a noun within
a list, and as an adjective (sex act, sexual harassment, etc.). Additionally, the
term is not defined as a stand-alone noun in any queried federal legal
dictionary.[xiii]
Interestingly, I only found one legal dictionary that defined “sex” as follows:
in the human species the male is called man, and the female, woman.[xiv]
Non-legal dictionaries define “sex” as the “state of being male or female”[xv]
and “either the male or female division of a species, especially as differentiated
with reference to the reproductive functions.” [xvi]
Searching other nondiscrimination laws and agencies seemed to
provide additional insights into defining “sex.”
"The prohibition against discrimination based on sex
was added to Title VII at the last minute on the floor of the House of
Representatives... the bill quickly passed as amended, and we are left with
little legislative history to guide us in interpreting the Act's prohibition
against discrimination based on 'sex.'" [447 US 57, 63-64]
The EEOC states sex discrimination involves treating someone
(an applicant or employee) unfavorably because of that person's sex.[xvii]
Then, the EEOC states that discrimination against an individual because of
gender identity, including transgender status, or because of sexual orientation
is discrimination because of sex in violation of Title VII. [xviii]
What about other government actions regarding the definition
of “trans,” “gender,” and “sex?”
In 2008, a District Court decided a transgender person was
protected by Title VII of the Civil Rights Act under the term “sex.” [xix]
In 2011, the Obama administration issued guidance for
addressing the needs of transgender people through the Office of Personnel
Management. [xx]
In 2012, the EEOC ruled that Title VII of the 1964 Civil
Rights Act, which made it illegal to discriminate based on sex, also protected
transgender employees. [xxi]
In 2014, the DOJ decided that Title VII of the Civil Rights
Act of 1964 applied to claims of discrimination based on gender identity. [xxii]
Putting it together…the legal definition of “sex” that was
suggested when the law was written was wildly skewed in 2011 by a politician. The
34 CFR 106 statues do not specifically define the term sex. However, by its use,
the term sex only delineates male from female according to reproductive biology.
This seems to be an acceptable understanding per the legislative comments and available
legal and non-legal dictionaries. It is not until 2008 that the transgender
status became involved with the Civil Rights Act under the term “sex.” Then,
the affiliation became a matter of Executive policy in 2011 by the Obama
administration. To date, the law has not been changed to define the term sex.
Oversight of Title IX Violations
According to Yale University, Institution for Social and
Policy Studies, there is little information on the number of alleged Title IX
violations that occur. Even though the law has been
on the books for over 40 years, and the subject having the modern condition of
being well-known, the leading resource for information about Title IX
noncompliance comes from the press and not the OCR. However, the OCR publishes their
reports at inconsistent intervals and includes different data each time. [xxiii]
Putting it together…there is no requirement on the Executive
to consistently report the status of Title IX violations.
Is the sight picture clear, yet?
Without the fear of public oversight, the OCR believes that they can coerce any
federally affiliated educational institution as they see fit, for as long as
they see fit, to achieve whatever results they desire, for all violations,
objective and subjective.
Competing Narratives
In my opinion, there are several
competing narratives at the heart of this matter. The loudest of these are
three. First, the politicians, through government action, claim that it’s
unjust to treat transgender people according to their biological configuration.
Second, the district, through institutional proceedings, claim that there are
reasonable accommodations for addressing transgender teens. Third, the local
citizens, by their spoken words, claim that the federal government has enabled
its agents to overstep their constitutional bounds. Because of their combined
loudness it’s easy to get caught up in a fruitless debate and miss the greater narrative
all together.
The greater narrative is that
it’s now openly acceptable to replace reality with perception. Governments and
local institutions are no longer requesting society to change. They are now
forcing society to change. This is nothing less than a complete reversal of how
the American constitutional republic was designed to govern. Unfortunately,
with some notable exceptions, society is not even speaking up (much less
pushing back).
It’s clear to me that the overall
intent of those that dominate the popular narrative mean to create a new uproar
over subjective discrimination. Their purpose is to replace the prior uproar of
objective discrimination that has now fallen largely silent in the dominate
culture. They are doing this because they believe the road to power is through
addressing strife. Therefore, the first step to power is to create strife.
Placing the subjective feelings of being transgendered above the objective reality
of being equipped as a male or female enables their purpose.
Going Forward
As it’s presented today, the
government enforcement of Title IX is tyrannical. The notion that there is a legal
test that can be uniformly applied for sexual discrimination based on how
someone feels is absurd and ridiculous. Electing to initiate force upon others because
they have a different solution to the common problem is coercive, reprehensible,
arrogant, and profane (it’s C.R.A.P.).
In my opinion this narrative
will be with the American discourse for the foreseeable future. The foundation
for this standard of conduct was laid by the prior generation, embraced by this
generation, and seems to be increasingly accepted as normal by the upcoming generation.
Given the ability of technology to compartmentalize information, and the next
generation’s acceptance of that information and us of subjective reasoning,
it’s highly likely that the transgender narrative will continue to gain
strength in the American discourse.
Looking twenty years into the future, as the next generation comes of
age to be hold political office, this estimate is particularly concerning.
To realize a redirection of this
narrative will require the current generation to significantly sell the virtues
of objective reasoning to the next. Additionally, the law must change to define
critical terms objectively and in such a way that empirical legal tests can be
developed. Furthermore, the law must be changed to empower local authorities to
develop and implement local solutions that are acceptable to local citizens.
Finally, the people must oust politicians and judges that do not operate
according to the law, or that pledge to act contrary to the law.
Never forget that the people of
a free society can do as they please unless restricted by law; whereas, the
government of a free society cannot act unless specifically authorized by the law.
“Making it up as we go” is a privilege exclusively provided to the people, not
the government. If the government wants to act, then it must ask for permission
of the governed first.
Your View
I invite you to tell me what you
believe at samfrescoe@gmail.com. I am
looking forward to addressing your comments and furthering our American
discourse. Thank you. – Sam Frescoe
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