Fighting their own battles

The Council for Christian Colleges and Universities (CCCU) has waded into a legal battle brewing in a Eugene, Ore., district court. The association, which represents more than 180 Christian institutions, last week asked to become a defendant in a lawsuit that attacks federal funding at religious schools nationwide. It will find out in early June if its motion succeeds.

A group of LGBT students filed a class-action lawsuit at the end of March claiming they experienced discrimination at faith-based schools and accusing the Department of Education of enabling it. Under the Biden administration’s interpretation of the federal Title IX law, the department prohibits discrimination on the basis of sexual orientation or gender identity. But it grants an exception to religious schools that enforce Biblical standards for marriage, sexuality, and gender identity. If the lawsuit succeeds, students at those schools could become ineligible for federal loans—a significant source of funding for some expensive, private institutions.

The U.S. Department of Education is the only named defendant in the lawsuit. But if it loses, the schools, not the department, will feel the pain of the funding cuts. The CCCU wants to protect its member schools from the choice between abandoning Biblical beliefs and cutting off students’ access to federal loans, and it doesn’t trust the the Education Department to defend its cause. (President Joe Biden has promised to “end the misuse of broad exemptions to discriminate.”)

The Alliance Defending Freedom (ADF) has also filed its own motion to intervene on behalf of Corban University, William Jessup University, and Phoenix Seminary.

Losing federal aid eligibility would likely close some private colleges. A few Christian schools, like Patrick Henry College and Hillsdale College, already turn down federal dollars to protect their religious freedom. But financial aid expert Mark Kantrowitz said that’s not feasible for most private institutions, which rely heavily on federal loans, grants, and work studies to bankroll students’ tuition payments. If students at religious schools lose access to those funds, private lenders likely wouldn’t pick up the slack because most only loan to those attending colleges eligible for federal money, he explained. Students would have to pay out of pocket or go elsewhere, eroding enrollment at schools already competing for fewer students thanks to falling birth rates.

“If they don’t make their enrollment numbers, it starts a downward spiral that ends in permanent closure,” Kantrowitz said. “Many of them are at the edge of a financial precipice.”

If approved as defendants, the CCCU and ADF will try to get the case dismissed. The CCCU argues the Education Department doesn’t have power to change the policies plaintiffs claim are discriminatory: Even if the government pulled its funding, schools could theoretically keep their rules and switch to the Patrick Henry and Hillsdale model. CCCU head Shirley Hoogstra said the group wants to welcome LGBT students, but the suit’s tactics are misplaced. She compared its choice of defendant to dissatisfied congregants complaining to a city hall about their pastor. “The city hall would say, well, this isn’t the place to complain about it,” she said. “They’re asking the Department of Ed. to correct something that they can’t correct.”

But the students may not need to win to accomplish their goal. The Senate is already considering a law that would take away Christian schools’ ability to defend their religious beliefs from nondiscrimination laws. The lawsuit’s sponsor, the recently formed Religious Exemption Accountability Project, told The Washington Post one of its goals is to pressure Congress to adopt the Equality Act, which passed the House but faces an uphill climb in the Senate.

Tom Berg, a constitutional and religious liberty law professor at the University of St. Thomas, said procedural problems and the CCCU’s arguments will likely kill the suit, but it still concerns him. “The primary purpose of suing in this matter is publicity and pressure,” he said. “It’s definitely an effort to wipe out the possibility of protecting both sides in legislation.”