Exclusive: Roger Marshall Challenges Education Department over Disappearing Title IX Comments on Redefining ‘Sex’

Roger Marshall and Miguel Cardona
Sarah Silbiger/Bloomberg via Getty Images,OLIVIER DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images

Sen. Roger Marshall (R-KS) is challenging Education Secretary Miguel Cardona on his agency’s “missing” public comments on the proposed changes to Title IX that would redefine “sex.”

“The Department of Education needs to explain the hundreds of thousands of missing comments from concerned taxpayers over its proposed Title IX funding rules,” Marshall told Breitbart News. “At a time when American citizens are highly concerned about overly politicized education in their children’s classrooms, an explanation regarding why this happened would go a long way in restoring public trust in the Department of Education.”

The proposed rule would include “sexual orientation” and “gender identity” in the definition of sex for purposes of Title IX.

The public comment period for the “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” rule ended September 12. By September 6, the rule drew over 349,000 comments, as reported by Politico.

However, by September 10, the total number of comments plummeted to 184,009 and the administration claimed the decrease was caused by a “clerical error.”

“For such a bizarre error to occur during the public comment process for an enormously consequential proposed regulation raises alarm and suspicion among these lawmakers and many American teachers, parents, students, and taxpayers,” Marshall writes in a letter to Cardona obtained exclusively by Breitbart News.

“The public deserves a full and transparent accounting and explanation for why the officially published docket numbers of comments filed in response to the Department’s NPRM apparently varied widely, particularly given the profound impact this regulation would have on the American education system,” the letter continues.

The rule does many things to overhaul Title IX, including scrapping Trump-era due process protections for students accused of sexual assault.

Indeed, the rule would no longer require a live hearing for a Title IX investigation and returns the definition of “sexual harassment” to “unwelcome sex-based conduct that creates a hostile environment by denying or limiting” a person’s ability to participate in school activities.

The Trump-era rule defined it as conduct “so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.”

Many critics of the new rule point out that the new definition of sex would strip women and girls of protections, as it would allow men to use their restrooms and locker rooms.

Marshall’s letter requests in writing the following ten questions:

  1. Why did 160,000 comments disappear within 48 hours of the comment deadline on FederalRegister.gov for the proposed Title IX rule?
  2. If the Department’s answer is that a “clerical error” occurred, what precise clerical error was responsible and why did it occur?
  3. In the September 14 update, POLITICO reported the “clerical error” the Department found was an “unrelated comment,” but the document in question is not a public comment but a policy memo from 2013, during the Obama Administration. Was this 2013 policy memo cross-linked to another active notice and comment link?
  4. How did a policy memo result in the loss of over 160,000 citizen comments?
  5. Why has the Department refused to issue a press release or a clarification for the public thus far?
  6. Will the Department clarify in a public forum what happened?
  7. What algorithms does the Department use to tally submitted comments? Please provide details on how the calculations were performed that were responsible for the tally drop.
  8. What comments or types of comments are routinely eliminated in the tally count by the Department during the rulemaking/notice and comment period?
  9. If “duplicate” or “mass marketing” comments are eliminated, how are comments determined to be part of either category?
  10. What Department officials had access to the comment tallies? Please provide all names and contact information.

Breccan F. Thies is a reporter for Breitbart News. You can follow him on Twitter @BreccanFThies.


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