Title IX religious exemption is not discrimination

Christian colleges won a major victory in court this week when a federal judge dismissed a lawsuit that threatened the schools’ federal funding.

In April 2021, a group of LGBT students sued the U.S. Department of Education for exempting the Christian colleges from nondiscrimination rules. The lawsuit included personal statements from students at universities such as Baylor University, Bob Jones, Dordt, and Union. The students described how colleges disciplined or expelled them for not abiding by standards for Biblical sexuality—standards rooted in the schools’ religious beliefs.

In a 40-page ruling, U.S. District Judge Ann Aiken, an appointee of former President Bill Clinton, rejected a broad range of constitutional arguments made by the students. They contended that allowing religious schools not to follow the nondiscrimination rules of the federal Title IX law violated their right to equal protection and impermissibly advanced a religious viewpoint about marriage and sexuality. Title IX bars sex discrimination by colleges and universities that receive federal funding.

That argument went nowhere with Aiken. The students invoked substantive due process, a constitutional doctrine meant to protect from arbitrary infringements on liberty by the government. Aiken called their reasoning ”vague” and “conclusory.” She criticized students’ allegations that their freedom of speech was violated as “difficult to string together” and implausible.

She similarly dispensed with the argument that the religious exemption somehow impermissibly advanced religion, stating the plaintiffs “provide no developed analysis or facts to shed light on those assertions or explain how defendants have advanced religion through their own activities and influence.” Nor did governmental action burden the religious beliefs of the students and violate the Religious Freedom Restoration Act, concluded Aiken.

Alliance Defending Freedom attorney Ryan Tucker represented a group of colleges that joined the case. He said that the Religious Exemption Accountability Project backed the former students in a broad push to pressure Christian schools. The Project’s parent organization, Soulforce, in its own words, seeks to “sabotage Christian supremacy,” including beliefs that gender is God-given.

“Their ultimate goal was to put religious schools to a choice, you know—either choose to stand true to your faith or capitulate in order to participate in these federal programs that would enable students to attend those universities,” Ryan said, referring to federal tuition and research grants.

When the lawsuit was first filed, Christian colleges worried the Biden administration might give only a lukewarm defense to Title IX’s religious exemption. In June 2021, the U.S. Department of Justice opposed the colleges’ motion to join the case and tempered language in its brief that originally promised a “vigorous defense” of the exemption. Yet, in the end, Tucker said government lawyers defended the exemption and sought dismissal of the students’ case—even if ADF raised a broader range of arguments in defense of the schools.

It's not the first challenge to Title IX’s religious exemption. In October 2020, a federal court dismissed a lawsuit by two Fuller Theological Seminary students who claimed the school violated Title IX by expelling them for entering same-sex marriages. A Biden administration executive order interprets Title IX to bar discrimination based on sexual orientation and gender identity.

Nor is it the only challenge to the religious autonomy of Christian universities and colleges. Last September, ADF asked the full 8th U.S. Circuit Court of Appeals to rehear a case involving Missouri’s College of the Ozarks over its bar of men and women sharing dorms, restrooms, or locker facilities. In July 2022, a court panel ruled 2-1 that the school lacked standing to challenge a U.S. Department of Housing and Urban Development directive that requires nondiscrimination in school dorms under the Fair Housing Act.

As yet, there is no indication whether the students will appeal, though Tucker indicated ADF would continue to vigorously defend the schools. “Our hope is that maybe this is the end of the story,” he said.