A recent blog post described Missouri's failed attempt to overhaul its Title IX law. While the bill would have added much-needed due process to sexual misconduct allegations and hearings in colleges in the state, many other aspects of the bill raised eyebrows, like the fact that it was proposed by a lobbyist whose son had just gotten expelled. And the fact that the bill would have allowed the son to appeal his case to a state agency that was helmed by his own mother.

But there is another problematic aspect of the bill that has gone underappreciated: The state attempt to regulate federal law.

Recall: Title IX is a Federal Law

It is easy to forget that Title IX is a federal law. It was passed by the U.S. Congress in 1972 and was signed into law by then-President Richard Nixon.

Just because the text of Title IX is scant – going no further than prohibiting sexual discrimination in the higher education setting – does not mean that it is no less a federal law. It just means that it is up to the U.S. Department of Education to elucidate what Title IX means, what it requires, and how it is enforced and sanctioned.

Federal Laws Trump State Laws

A key component of the structure of the U.S. government is the fact that federal law, when it contradicts state law, is always given priority. State laws that go directly against what a federal law says are thrown away, even if that federal law is a regulation that comes from a federal agency, rather than a federal law passed by Congress.

This concept is known as the supremacy clause and comes from Article VI, Clause 2 of the U.S. Constitution.

Missouri seems to have forgotten about this fact when it pursued a Title IX overhaul. Any provision of their bill that contradicted federal Title IX regulations – and there were many – were destined to be struck down in court.

Overhauling a Law That Is Being Overhauled

Complicating – or, rather, simplifying – matters is the fact that the U.S. Department of Education under Betsy DeVos is already overhauling the federal regulations that draw the line between the rights of alleged victims and an accused student's due process rights. If successful, Missouri's attempts to overhaul these same regulations from the state level would have created confusion in Missouri schools, which would have only led to more confusion when the federal Title IX rules got changed at the federal level.

Joseph D. Lento: National Title IX Advisor and Defense Lawyer

Not all change is a good thing. While the need for more due process in Title IX cases is pressing, confusing colleges with temporary fixes like this one would have done more damage than good: Every time the rules are changed, colleges have to revise their Title IX procedures and upset the status quo that everyone was counting on.

Joseph D. Lento is a national Title IX advisor and a Title IX defense lawyer who represents students accused of sexual misconduct. Contact him online or call his law office at (888) 535-3686.