Red state governors instructing their schools not to comply with Biden’s Title IX rules are taking a gamble: Schools in these states risk losing federal education funding for noncompliance.

If past is prologue, it’s a risk worth taking.

Republican governors and attorneys general are leading the red state revolt to President Biden’s new Title IX rules, arguing the administration’s sweeping changes to the 1972 civil rights law — designed to protect women and girls from sex-based discrimination in schools — undermine the law’s purpose and harm women. They say it does this by expanding the definition of sex-based discrimination to include “gender identity” and sexual orientation.

Title IX governs how schools that receive federal funding handle sexual misconduct and harassment complaints and manage athletics and other sex-divided spaces and programs. The new rules, which go into effect August 1, don’t address athletics, but they do prohibit schools from instituting blanket bans on transgender students using women’s bathrooms or locker rooms.

The new rules also strip due process rights from students accused of sexual misconduct. The rules risk stifling speech by expanding what constitutes harassment to include things like using the ‘wrong’ pronouns for transgender-identifying students.

At least 22 red states are suing the Biden administration over its Title IX rules. Seven states filed suits this week, alleging the Department of Education has exceeded its authority and violated the Administrative Procedures Act by instituting rules that rewrite the law to undermine its intent.

While these suits make their way in the courts, several Republican governors are choosing a more confrontation tactic: outright refusal to comply.

“Texas will not comply with President Joe Biden’s rewrite of Title IX that contradicts the original purpose and spirit of the law to support the advancement of women,” Texas’s Governor Abbott wrote in a letter to the state’s public universities and community colleges Wednesday. “Last week, I instructed the Texas Education Agency to ignore President Biden’s illegal dictate of Title IX. Today, I am instructing every public college and university in the State of Texas to do the same.”

“Florida rejects Joe Biden’s attempt to rewrite Title IX,” Florida’s Governor DeSantis said in a video posted to X. “We will not comply, and we will fight back.” 

“My message to Joe Biden and the federal government is we will not comply,” Arkansas governor, Sarah Huckabee Sanders said.

What these governors risk by refusing to comply with the Department of Education’s edicts is an Office of Civil Rights investigation into their schools and the loss of federal education funding. This money is significant: Public k-12 schools get an average of 8 percent of their funding from federal sources. For a large state like Texas, this means more than $3 billion in federal funds are on the line.  

Yet here’s the kicker: The Sun could not find one instance, in the 50 years since Title IX was passed, of the Department of Education revoking federal funding from a school for non-compliance. This fact is rarely discussed, since pulling federal funding is the stick with which the Department of Education’s Office of Civil Rights wields its power over colleges and k-12 public schools.

The Department of Education did not respond to the Sun’s questions on how many times it has revoked federal funding from a school for noncompliance with Title IX. Instead, a spokesperson emailed a generic and unrelated statement. A follow-up phone call was not returned.

“The Department’s rulemaking process is still ongoing for a Title IX regulation related to athletics. The Department proposed amendments to its athletics regulations in April 2023 received over 150,000 public comments, which by law must be carefully considered. We do not have information to share today on a timeline,” the statement said.

This doesn’t mean that schools don’t pay for noncompliance in the form of legal fees, damages paid out to students who sue, and the cost schools undertake to comply with Office of Civil Rights mandates. Yet when it comes to revoking federal funds, the Office of Civil Rights is apparently all bark and no bite.

“It’s worth the risk to them to say no and risk litigation,” an attorney who specializes in Title IX cases, Andrew Miltenberg, tells the Sun of these red state governors. “Let the Department of Education convince the Department of Justice to sue and know that they’ve never withdrawn funding and the most they’ve done is take a particular school and fine them.”

Pulling federal education funding from an entire state’s public schools and universities is unprecedented. Mr. Miltenberg says he doesn’t think the Department of Education can unilaterally pull funding without Department of Justice involvement.

A Government Accountability Office report released last week also paints the Office of Civil Rights as an agency rife with delays and bureaucratic inefficiency that is underfunded and understaffed. The report, which was commissioned by Congress two years ago, found that in 10 out of 26 cases of Title IX compliance the agency reviewed, the civil rights office took more than a year to provide feedback to schools about compliance plans. In five cases, the office took five years to respond.

“Our thought was that they needed to do a better job of managing to make sure that they could respond, and we didn’t think it was okay to wait a year or five years,” the report’s author and a director at the Government Accountability Office, Melissa Emrey-Arras, tells the Sun.

The Office of Civil Rights has nearly 11,000 open investigations into schools, with more than 2,500 of these Title IX cases. These red state governors are calling the administration’s bluff — and they’re likely to get away with it.

Who wins the presidential election in November will also determine how effective this red state revolt will be.