“The federal Department of Education’s Office for Civil Rights is looking into conservative activist Christopher Rufo for, among other things, ‘misgendering’ a diversity official at Florida’s New College,” reports Campus Reform. The diversity official uses “ze/zir” pronouns. Rufo is a trustee of the College.
A federal appeals court ruled that there is a First Amendment right to not use a transgender person’s preferred pronouns, in Meriwether v. Hartop (2021), where a professor refused to call a transgender student “she” or “her.” But some other federal judges have disagreed with that ruling, as does the Biden administration, which has filed court briefs claiming that misgendering is a form of sexual harassment if it is repeated and intentional. Even if transgender people have the right to be called their choice of “he” or “she,” that doesn’t mean they have the right to be called made-up words like “ze” or “zir”. Since cisgender people have no right to force people to use made-up words as gender pronouns, transgender people should not have any such right, either. That would be a form of affirmative action. Courts have ruled that there is no right to affirmative action under civil-rights laws such as Title IX and Title VII. (See, e.g., Coalition for Economic Equity v. Wilson (1997)).
As Campus Reform notes, “unnamed students, faculty, and staff” at the school filed a complaint alleging New College trustees and administrators “violated civil rights law by removing ‘gender neutral’ signage from bathrooms, defunding the DEI and gender studies programs, and ‘misgendering’ the former DEI director, who uses ‘ze/zir’ pseudo-pronouns.”
The complaint says Rufo “mocked and misgendered New College’s Director of OOIE, [Yoleidi] Rosario-Hernandez, after ze was summarily fired.”
It also alleges “newly-hired staff members have verbally attacked New College students, parents, and faculty, instituted discriminatory policies targeting LGBTQ+ students, and taken other actions overtly hostile towards New College students, faculty, and staff on the basis of race, gender, religion, and disability.”
The actions alleged to be discriminatory include:
— replac[ing] the gender neutral bathroom signs with ones “indicating that only men and women, or ‘families’ were welcome in the bathrooms.”
— “personally insult[ing] specific New College students, parents, and faculty based on perceived disability and gender prejudice.” Insults included “hysterical,” “mentally ill,” “intentionally misusing pronouns” and “otherwise denying the individual’s gender identity.”
— “lowering academic standards” in order to enroll more men.
— “removal of all inclusive and diversity-focused content from Admissions marketing materials and the College’s website.”
— canceling the Africana Studies Living Learning Community and changing the name of the Pride LLC to “Great Books.”
— abolishing the Office of Outreach and Inclusive Excellence.
— “fir[ing] multiple LGBTQ staff without notice.”
Rufo denounced the complaint, saying it had “no merit.” “This is a brazen attempt to subvert the democratic governance of New College and entrench left-wing ideological programs under the guise of civil rights law. Although the complaint is wholly without merit, this does not mean it will automatically fail. The Biden Administration has demonstrated repeatedly that it is willing to weaponize the federal law enforcement apparatus against school board parents and other conservative reformers.”
As one scholar notes, the complaint about the abolition of DEI offices “is the most important part of the complaint. If the Biden DoE is able to establish a precedent that abolishing a DEI office is in itself a violation of civil rights, then all public institutions will be required to maintain what are in effect, political commissars.”
Courts have ruled that federal civil rights laws don’t require or favor affirmative action, much less DEI offices, in cases such as Coalition for Economic Equity v. Wilson (1997), but Democratic administrations tend to disagree with such decisions. When the U.S. Fifth Circuit Court of Appeals struck down the University of Texas’s affirmative action policy in 1996 in Hopwood v. Texas, the staunchly progressive head of the Education Department’s Office for Civil Rights, Norma Cantu, told colleges in the region to keep using racial preferences, until a backlash forced the Clinton administration to backtrack from that position.
The courts say that conduct must be both “severe and pervasive” to violate Title IX, in the Supreme Court’s decision in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), and the Florida-based federal appeals court decision in Hawkins v. Sarasota School Board (2000). But the Biden administration has disregarded those rulings, declaring that school systems may potentially be liable for racial or sexual harassment if parents’ speech at a school board meeting seeking the removal of books from a school library offends LGBT or black students — even though such speech is obviously not severe or pervasive under federal appeals court rulings like Hawkins v. Sarasota School Board (2000), which is a binding precedent in Florida because it was issued by the regional federal appeals court.
Isolated acts of exclusion are not considered severe or pervasive enough to be illegal sexual or racial harassment, even according to progressive judges, so much of the complaint against Rufo would be deemed baseless if it were made in federal court. For example, calling someone the “wrong” pronoun a few times is not a violation of federal civil rights laws, even according to progressive judges who believe that transgender pronouns are the “correct” pronouns. (See, e.g., Milo v. CyberCore Techs., LLC, No. SAG–18–3145, 2020 U.S. Dist. LEXIS 5355, at *10–11 (D. Md. Jan. 13, 2020) (no hostile environment despite occasional use of incorrect pronouns, and “comment” expressing “hatred of transgender people”; “That single comment …. while unquestionably rude, does not …. ‘satisfy the severe or pervasive test.’”)).
Similarly, exclusionary acts toward employees usually don’t create an illegal hostile environment, even when it deprives you of access to a locker room or important meeting. (See, e.g., Singh v. U.S. House, 300 F.Supp.2d 48, 54 (D.D.C. 2004) (fact that employee was frozen “out of important meetings and humiliated at those . . . she did attend” was not severe or pervasive enough to show hostile environment); Swann v. Office of the Architect of the Capitol, 73 F. Supp. 3d 20 (D.D.C. 2014) (fact that female employee, unlike other employees, did not have access to a locker room for her gender, did not create hostile environment, even coupled with offensive remarks)).
Lowering academic standards to enroll more men does violate Title IX. But the Office for Civil Rights, which is heavily politicized, probably won’t find that to be a violation, because it is commonplace for liberal arts colleges to have lower standards for male applicants than female applicants, who have to have higher grades and test scores to get admitted. Colleges give men a preference to avoid having student bodies that are two-thirds female, which often happens if males and females have to have the same grades and test scores to get admitted.
A federal judge ruled that the University of Georgia’s gender preference for male applicants was illegal in Johnson v. University of Georgia System, but other colleges continue to have gender preferences for male applicants, and feminist groups like the National Women’s Law Center refuse to challenge gender preferences in admission, because they support racial preferences in admissions, and don’t want to establish any legal precedent that would undermine colleges’ use of race or gender in admissions to try to racially balance their student bodies or achieve demographic balance. The feminist groups also support gender-based scholarships, which are ten times more likely to be for female students than male students. A ruling that gender preferences for men in admissions are illegal could lead to a future precedent that female-only scholarships are illegal, too.
When it wants to find a school system in violation of Title IX, the Biden administration will simply disregard court rulings to the contrary. In May, the Biden administration was reported to have ruled that a school district’s “banning several pornographic books last year was discriminatory against LGBTQ and non-white authors and readers.” But the Forsyth County Schools did not actually discriminate against non-white or LGBTQ authors, and even the Biden administration recognized that the schools did not “target” minority students. Instead, it suggested that the “book screening process” itself potentially violated federal discrimination laws even absent any discriminatory motive, because of things parents said in the debate over school policy.
Should a university or school district be deemed guilty of a “hostile environment” because school officials pursue policies or express opinions that do not target minority students, but lead to some minority students becoming upset? Courts have said no, because this is not “severe or pervasive” enough to create a hostile environment. Indeed, a university president’s public speeches that allegedly exhibited “scorn and hostility” toward students with learning disabilities did not even potentially create a hostile environment, according to a judge in Guckenberger v. Boston University, 957 F.Supp. 306 (D. Mass. 1997). Students’ harassment claim over the president’s speeches was deemed so weak by the judge that it was tossed out at the earliest possible stage of the case. The judge’s ruling reflected the fact that it is usually hard to establish a harassment claim over conduct that is not “directed at” a complainant, as judges have noted.
But the Education Department’s Office for Civil Rights has ignored these court rulings. On May 19, it said that the Forsyth County Schools’ removal of 8 books (7 of them temporarily) from a school library, which admittedly did not “target” minority groups, potentially created a hostile environment in violation of the federal laws Title VI (which bans racial discrimination) and Title IX (which bans sexual discrimination), and thus could constitute discriminatory harassment. As the Daily Caller noted, the “books had graphic depictions of sexual behavior and one, ‘All Boys Aren’t Blue,’ by George Johnson, goes on to describe two boys performing oral sex on each other.” As the Office for Civil Rights (OCR) put it:
OCR has a concern the District received notice that its … book screening process may have created a hostile environment for students, yet the District’s responsive steps related to the book screening process were not designed to, and were insufficient to, ameliorate any resultant racially and sexually hostile environment. OCR recognizes the District Media Committee rejected suggestions to handle challenged books in ways that it believed would target certain groups of students.
It was bizarre for OCR to suggest that this created a racially and sexually hostile environment, because removal of library books does not constitute harassment based on race or sex, and OCR itself admits that the school system did not “target certain groups of students.” Removal of books based on their viewpoint can violate the First Amendment, according to the Supreme Court, but the Office for Civil Rights does not enforce the First Amendment, and removing books about race or gender is not the same as harassment of students based on their race or sex. The laws against discrimination in education — Title VI and Title IX — are narrow, and only cover “intentional discrimination” against students based on race or sex, as the Supreme Court explained in Alexander v. Sandoval (2001).
Even more bizarrely, OCR suggested that students might be so traumatized by the book screening process that they would need “supportive measures,” the way campus rape victims receive “supportive measures” from colleges in the aftermath of a campus rape. To close the investigation, OCR and the school district entered into a resolution agreement:
The Agreement requires the District to issue a statement to students in the District explaining the book removal process and offering supportive measures to students who may have been impacted by the book removal process. The Agreement also requires the District to administer a climate survey of the student bodies at each of the District’s middle and high schools to assess whether additional steps need to be taken.
The Education Department’s suggestion that the race discrimination law Title VI may have been violated was particularly strange, because none of the books removed was removed because of its racial content — all were removed because of their sexual content, and seven of the eight books that were sexually graphic were ultimately returned to school libraries through the normal review process. The one remaining book that was not returned to the library does not need to be returned to the library under the resolution agreement, so it does not even fix any real or imaginary First Amendment violation.
The grounds by which the Education Department contended that the book removals may have constituted a racially hostile environment were that in the process of objecting to sexually explicit books, “some parents made negative comments about diversity and inclusion or critical race theory.” But Title VI is not aimed at promoting “diversity” or “critical race theory,” only at ending racial discrimination, which is not the same thing, as judges explained in Coalition for Economic Equity v. Wilson (1997). The grounds by which it contended that the book removals may have constituted a sexually hostile environment were that “some comments [by parents] focused on removing books for reasons related to gender identity or sexual orientation,” even though “most of their comments focused on sexually explicit content.”
An education scholar at the American Enterprise Institute told this blog that the precedent that this seems to set is that any school district that temporarily removes a book for review must now send a notice to all students disclaiming racism/sexism/homo/transphobia, and probably offer counseling.
Holding schools liable for parents’ speech in public policy debates seems at odds with First Amendment rulings such as Rodriguez v. Maricopa Community College, 605 F.3d 703 (9th Cir. 2010), which barred offended Hispanic staff from suing for racial harassment over the racially inflammatory anti-immigration emails sent by a white instructor.
One could argue that the book removals made students feel excluded or unwanted. But such vague feelings of alienation don’t rise to the level of a hostile environment, in the eyes of the courts, which reject harassment allegations over conduct that is much worse and far more exclusionary, and don’t give much weight to exclusionary acts that don’t explicitly reference one’s race or gender. For example, a woman lost her harassment lawsuit despite being allegedly frozen “out of important meetings and humiliated at those…she did attend,” in Singh v. U.S. House of Representatives (2004). And a woman lost a lawsuit alleging a hostile environment based on her gender, which cited exclusionary experiences such as not having a locker room for her gender, in Swann v. Office of the Architect of the Capitol (2014).
What happened in the Forsyth County Schools did not remotely violate the Title IX statute. Under Title IX, even recurrent insults or taunts aimed at students based on their sex are usually not grounds for a lawsuit, according to court rulings such as Hawkins v. Sarasota School District (2003). That court decision, by the federal appeals court with jurisdiction over the Forsyth County Schools, rejected a Title IX lawsuit over conduct that was much more offensive, hurtful, and sex-based than what occurred in the Forsyth County Schools in response to its book removal decisions.
