This is my first comment against the current administrative state's proposals to immunize discrimination in education programs and activities funded with money from Federal taxpayers. You can leave your own comments on these proposals at any time, 24/7, between now and the deadline on Monday, January 28, 2019. I encourage everyone to go to www.regulations.gov and leave your comments.
January 25, 2019
Department of Education
RE: Comment to Docket ID ED-2018-OCR-0064
RIN 1870-AA14
To the Department of Education:
This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499. You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted." 83 F.R. at 61495.
There is nothing in Sections 1681 et seq. of Title 20 that authorizes these proposals.
Section 1681, the beginning section of Title 20, sets the standard for discrimination in education on the basis of sex. Subsection (a) could not be more clear: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]" Section 1681 does not authorize your proposals.
Section 1682 provides that "[e]ach Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity ... is authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders" that are "consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken." Your proposals (1) are not based on any statute authorizing any financial assistance in education; (2) do not even mention any statute authorizing any financial assistance in education, and (3) are not consistent with the achievement of the objectives of any statute authorizing financial assistance in education. Section 1681 and Title IX taken together is not a single "statute" and even if they were, they do not confer any authorization for any financial assistance in education or otherwise. Therefore section 1682 is not a grant of authority to you for your proposals, either.
Section 1683 provides for judicial review. There is no basis to mis-interpret it as a grant of authority to you to make these proposals.
Title 20 of the U.S. Code finishes with these sections:
§ 1684. Blindness or visual impairment; prohibition against discrimination; § 1685. Authority under other laws unaffected; § 1686. Interpretation with respect to living facilities; § 1687. Interpretation of “program or activity,” and § 1688. Neutrality with respect to abortion.
None of these provisions are statutes that authorize any financial assistance in education or at all. Section 1685 appears to come closest to conveying authority based on a quick mis-reading of its title, but upon examination what section 1685 actually says is that your authority under other laws is not affected by Title IX. That clearly is not a grant of authority in and of itself in any way. Moreover, you do not base your authority to make these proposals on any law other than Title IX. To quote your proposals again, you base your authority to make these proposals only on "20 U.S.C. 1681 et seq., unless otherwise noted." 83 F.R. at 61495.
To summarize, Congress has not given the Department of Education or any other administrative agency the authority to make the proposals to change the law of Title IX that were published at 83 F.R. 61462-61499. Put another way, Congress did not confer the authority to the Department of Education or any other administrative agency to change the law of Title IX as these proposals would change it, not under "20 U.S.C. 1681 et seq.," and not under any other statute enacted by the representatives of the people of the United States in their Congress.
Thank you for your consideration.
Sincerely Yours,
Dennis J. Wall
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