Because We Say They Don’t: Do the Title IX Regulations Violate the First Amendment?

by Chris Gilbert, Thompson & Horton LLP

Because it’s Title IX Week(s) here at Thompson & Horton, I decided to look and see how the new Title IX regulations address the First Amendment.  One of the Trump Department of Education’s (“DOE”) oft-stated concerns about pre-2020 Title IX jurisprudence was that the First Amendment rights of speakers to discuss Title IX-adjacent issues (or protest Title IX itself) were being violated, often by chilling protest speech on university campuses.  There was therefore concern on the Right that the Biden DOE Title IX regulations would weaken the First Amendment rights of student parent and even teacher speakers.  The Biden DOE assured commentators that they were taking these rights seriously.

And we now know that the new regulations do not violate the First Amendment – in part because they tell us they don’t, repeatedly, in the Preamble.  (See, e.g., p. 109 (“[B]ecause § 106.6(d) continues to state that nothing in the Department’s Title IX regulations requires to restrict rights otherwise protected under the First Amendment…the final regulations are fully consistent with the First Amendment.”))  The regulations also assure us that any violation of the First Amendment is actually our fault – because the regulations say that all they require is an effective response to a claim of sexual discrimination but leave it to us to figure out how to do that, any response that actually does violate the First Amendment is obviously on us.

I don’t believe on initial inspection that the regulations as written facially violate the First Amendment.  Things are way too complicated for that. However, it will be very easy in practice and implementation for specific actions seeking to implement Title IX to violate someone’s First Amendment rights. The DOE concedes that “the First Amendment may in certain circumstances constrain the manner in which a recipient responds to sex-based harassment in the form of speech,” but just urges us not to do it that way.  (See p. 103, “recipients have ample other means at their disposal to remedy a hostile environment….”)1

The DOE does note that courts have ruled that the government has a “compelling interest in eradicating discrimination”, and that the regulations have been narrowly tailored to advance that interest.  The regulations focus on the actual effect of harassment, and not just on its purpose or intent – a problem in many of the early speech code cases, including Saxe v. State College Area School District, a case cited repeatedly in the First Amendment section of the regulations (the fact that Justice Alito wrote that decision when he was on the Third Circuit is surely coincidental).   The regulations also note that Tinker v. Des Moines Independent Community School District prohibits not only material and substantially disruptive speech, but also speech that would “impinge upon the rights of other students,” and argues that “the type of conduct prohibited by the definition of hostile environment sex-based harassment in the final regulations ‘invades the rights of others’ to receive an education free from sex discrimination,” and is therefore not protected by the First Amendment.  The DOE argues that “certain forms of purely verbal harassment” are “speech acts” that are outside the protections of the First Amendment.

Someone asked me yesterday, “how could the Title IX regulations violate the First Amendment?”  Couple different (potential) ways:

  • that requiring persons to agree with and enforce the DOE’s views on issues such as gender identity, sexual orientation, and pregnancy-related issues (i.e. abortions) would amount to compelled speech – a very similar argument to that which book vendors in Texas successfully used to challenge the constitutionality of the READER Act;
  • that having to agree with and enforce the DOE’s views on those same issues would burden those with deeply-held but opposing religious viewpoints; and
  • that students and professors would refrain from expressing views on Title IX-adjacent issues, for fear of being accused of violating Title IX, thus chilling their speech.

The DOE acknowledges concerns about the regulations’ potentially chilling effect on speech – but then essentially brushes those concerns off as “speculative,” since the DOE says it doesn’t intend to administratively enforce the regulations in a way that would violate the First Amendment (so again, if the First Amendment gets violated, that’s our fault, not theirs).

The regulations also focus on online harassment, noting that schools will have a responsibility to address a wide variety of online harassment between students, but only if it creates “a hostile environment in the recipient’s education program or activity….”  (Page 145).  This is similar to how many circuits have addressed the regulation of online harassment under the First Amendment, finding that Tinker would apply so long as the harassment has some nexus to the school community (different tests are used by different circuits).  This is also consistent with Mahanoy Area Sch. Dist. v. B.L., which the DOE believes “suggests that much student online speech in the school context would be subject to school discipline.”  (page 146)  The regulations do note – at least twice (page 146, 334) – that schools “are not expected to affirmatively monitor students’ online activity.”

We already have several lawsuits challenging the regulations.  In State of Texas v. United States of America, Case No. 2:24-cv-00086-Z (Western District of Texas), the Texas Attorney General references the First Amendment in passing, but certainly doesn’t highlight it as a major cause of action.  Lawsuits filed in Louisiana (by Louisiana, Mississippi, Montana and Idaho) and Alabama (by Alabama, Florida, Georgia and South Carolina) also raise free speech and free exercise issues.  A blog post by our Title IX group discussing the litigation in more detail can be found here.

So I predict that free speech and free exercise rights will be discussed as part of any litigation over the regulations, although they will probably not be the main focus of any case.  Stay tuned to see if I am right.

 

1See also page 115 (“[W]hile the final regulations require that recipients respond to sex-based harassment, the final regulations do not dictate that a recipient take any specific disciplinary action in response to sex-based harassment, and any such action a recipient may take must account for and comply with the First Amendment. See 34 CFR 106.6(d). A recipient thus can effectively address sex-based hostile environment harassment in ways that do not implicate or burden the First Amendment rights of students, employees, or others.”