The Washington PostDemocracy Dies in Darkness

Opinion When the pronoun police come for eighth-graders

4 min

If the pronoun police of Wisconsin’s Kiel Area School District were just another woke excrescence on American education, they would be merely local embarrassments. These enforcers are, however, a national disgrace because they are a direct consequence of federal lawlessness with a progressive pedigree.

In April, the district lodged a complaint against three eighth-grade boys for the offense of “mispronouning,” referring to a classmate using the biologically correct pronoun “her” instead of the classmate’s preferred “them.” This, district officials — supposed educators — said, constitutes “sexual harassment,” a Title IX violation.

Title IX of the Education Amendments of 1972 was enacted long before Congress could have imagined today’s progressive dogma that grammar should reflect, through pronouns, the most advanced thinking about gender fluidity. Title IX’s operative language says no person “shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination” in education.

This language has been reasonably taken to encompass sexual violence, unwanted touching and such “unwelcome conduct” as persistent spoken sexual innuendo, stalking, etc. Now, however, the Wisconsin district, which is perhaps proud of its progressive improvising, has made this category of conduct elastic enough to encompass mispronouning. The district’s behavior is trickle-down lawlessness that stems from the arrogance and cynicism of the U.S. Education Department.

Making a mockery of Title IX illustrates what some progressive theorists call “dynamic statutory interpretation,” meaning law enforcement entirely untethered from congressional intent — actually, from law. In 2014, Catherine Lhamon, an Education Department assistant secretary for civil rights, sent an explanation of a 2011 “Dear Colleague” letter to people who are in no sense “colleagues” of federal bureaucrats: college administrators. She directed them to comply with 66 pages of “guidance” on sexual harassment policies. Many of the policies produced campus kangaroo courts in which persons — almost always young men — accused of sexual misbehavior are routinely denied due process.

Nationwide, accusers are identified, in the language of prejudgment, as “survivors.” The accused are denied the right to question their accusers and can be convicted on a mere “preponderance of the evidence,” not evidence beyond a reasonable doubt. By one recent count, there are more than 700 due-process lawsuits from victims of make-believe courts on campuses, seeking justice in real courts.

R. Shep Melnick, a Boston College professor and co-chair of the Harvard Program on Constitutional Government notes this: Lhamon breezily says she resorted to explicating the “Dear Colleague” letter, thereby evading the Administrative Procedure Act’s rule-making requirements, because the 66 pages were, in her words, merely “an explanation of what Title IX means.” Sixty-six pages of “explanations” that, if not adhered to, can result in federal compliance investigations and termination of the institutions’ federal funding.

In 2014, Lamar Alexander, the Tennessee Republican who was a former university president and the senator most conversant with higher education, asked Lhamon who gave her the power to issue detailed, effectively mandatory “explanations.” With smug hauteur, she said: “You did when I was confirmed.”

President Biden has brought her back. Although a Senate committee refused to recommend her confirmation as head of the Education Department’s Office of Civil Rights, the Senate confirmed her in a 51-50 party-line vote. Her progressive spirit — “social justice” righteousness unrestrained by law — is on display in Wisconsin’s Kiel School District.

There, the regnant Lhamonism that has seeped into educational crevices from coast to coast, and from kindergarten through graduate school, has resulted in yet another progressive attempt to supplant free speech with compulsory speech. Fortunately, the three middle-school miscreants accused of “mispronouning” seem to understand that the best defense is a good offense.

Represented by the Wisconsin Institute for Law & Liberty, the boys are arguing that their use of biologically correct, if politically incorrect, pronouns is speech protected by the First Amendment. The Constitution also forbids the district from compelling them to speak as district bureaucrats suddenly — how long ago did they embrace this orthodoxy? — prefer. Furthermore, the institute says it has spoken with another Kiel Area family “whose daughter was recently given an in-school suspension for ‘sexual harassment’ based on a single statement using an allegedly ‘wrong’ pronoun — and the statement was said to a third party, not even to the allegedly ‘misgendered’ student.”

Perhaps Kiel Area schools can waste time trying to bully children into conformity to this or that fad because the schools have so splendidly accomplished their actual task: education. It might, however, be best if schools that are eager to engage in pronoun policing not even attempt education.