News and Commentary

Department of Education Office for Civil Rights Title IX

Department of Education Attorney Lied, Repeatedly, to Federal Judges about Title IX Rule

Sharing is caring!


Rebecca Hain: 513-479-3335


Department of Education Attorney Lied, Repeatedly, to Federal Judges about Title IX Rule

WASHINGTON / November 8, 2023 – On June 22, 2021, without advance warning or notice, the OCR issued a new Title IX Rule that changed the definition of sex to include “gender identity.” (1). The regulation warned schools that OCR intended to “fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities.”

In response, the Attorneys General from 20 states — AL, AK, AZ, AR, GA, ID, IN, KS, KY, LA, MS, MO, MT, NE, OH, OK, SC, SD, TN, and WV — brought a lawsuit against the DOE, alleging the Title IX Rule was unlawful under the Administrative Procedure Act (2).  Nearly one year later, on July 15, 2022, the District Court of Tennessee issued a Temporary Injunction against the directive (3).

Not surprisingly, the U.S. Department of Education appealed the ruling to the Sixth Circuit Court. The Court heard oral arguments on April 26, 2023. A recording of the hearing reveals that David Peters, the trial attorney representing the Department of Education, 10 times made the claim that the Rule was not binding and did not impose any new requirements on schools (4).

The attorney’s mention of “these documents” refers to the contested 2021 Rule:

  1. 2:00 minutes: “They don’t address what constitutes prohibited sex discrimination”
  2. 3:08: The Department of Education is “not enforcing these documents.”
  3. 4:20: “These documents are not what’s being enforced.”
  4. 5:50: “These documents don’t address regulated entitles’ obligations.”
  5. 7:00: “The Department has vowed to enforce Title IX, not these documents”
  6. 9:15: “These documents would be entitled to no deference at all.”
  7. 9:45: “These documents do not impose any obligations on the states because they are not enforceable in any way.”
  8. 14:00: “They don’t create any legal rights or obligations and they wouldn’t be accorded any weight in any adjudication.”
  9. 14:55: “The duty is to comply with Title IX, not these documents.”
  10. 18:00: “These documents do not create legal obligations.”

Subsequent to the hearing, the Department of Education opened three enforcement actions that are based on the disputed 2021 Rule:

  • Forsyth County Schools, Georgia (5).
  • New College, Florida (6).
  • Taft College, California (7).

The fact that these enforcement actions were initiated based on the contested 2021 Rule, reveals the Department of Education attorney repeatedly misrepresented the truth to the panel of federal judges.

The federal Code of Ethics states, “An employee shall not engage in criminal, infamous, dishonest, immoral or disgraceful conduct, or other conduct prejudicial to the government” (8). Overt dishonesty by an attorney representing the federal government cannot be tolerated or condoned in the United States legal system.