Title IX religious exemption is being challenged by class action lawsuit

[W]hile the statutory religious exemption to Title IX may permit, or even require, the Department to refuse assistance to sexual and gender minority students like the Plaintiffs, the Constitution forbids such inaction.” Hunter v. U.S. Department of Education, Complaint ¶6.

Title IX has long had an exemption for religious institutions, which was put in place to protect religious rights under the First Amendment. That exemption is now coming under fire. In Hunter v. U.S. Department of Education, the Religious Exemption Accountability Project filed a class action lawsuit on March 29, 2021, in the United States District Court for the District of Oregon seeking to invalidate Title IX’s religious exemption as unconstitutional. 

Current law and regulations

Title IX of the Education Amendments of 1972 prohibits educational institutions that receive federal funds from engaging in discrimination on the basis of sex. Pursuant to the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, the term “sex” encompasses sexual orientation and transgender status for purposes of a related civil rights law, Title VII. The reasoning in Bostock was recently extended to Title IX by the Biden administration in an executive order, and the U.S. Department of Education has since announced that it is reviewing the Title IX regulations and guidance to ensure compliance with Bostock. 

It is recognized that some interpretations of Title IX may create tension with the religious beliefs of certain institutions of higher education. To address this, the law also provides an exemption for certain religious institutions, stating that this prohibition “shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” 20 U.S.C. 1681(a)(3). 

This religious exemption is explained further in 34 C.F.R. 106.12, which outlines the eligibility for such exemptions, as well as the process to seek an exemption.  Generally, to claim an exemption, the institution must do any of the following:

• Be a school or department of divinity;
• Require its faculty, students or employees to be members of, or otherwise engage in religious practices of, or espouse a personal belief in, the religion of the organization by which the institution claims to be controlled;
• Include in its charter or catalog or other official publication an explicit statement that the institution is controlled by a religious organization, or is committed to the doctrines or practices of a particular religion, and the members of its governing body are appointed by the controlling religious organization, and it receives a significant amount of financial support from the controlling religious organization;
• Have a doctrinal statement or a statement of religious practices, along with a statement that members of the institution community must engage in the religious practices of, or espouse a personal belief in, the religion, its practices, or the doctrinal statement or statement of religious practices;
• Publish an institutional mission that is approved by the governing body of the institution and includes, refers to, or is predicated upon religious tenets, beliefs or teachings; or
• Have other evidence sufficient to establish that the institution is controlled by a religious organization as required by Title IX.

For many years, the regulation required institutions to seek prior written assurance from the Department of Education that a religious exemption was appropriate. Many institutions did in fact seek such assurances. However, on August 14, 2020, the regulations changed such that it is no longer required that the institution obtain a prior assurance. Instead, the institution can raise its religious tenets as a defense if it should be the subject of an investigation through the Department’s Office for Civil Rights. 

The lawsuit  

In class action lawsuits, plaintiffs are typically chosen to represent a larger body of individuals who are, at least according to the complaint, experiencing similar harms.  In this case, the complaint includes a representative class of 33 students from a multitude of Christian institutions across the country. Some of these institutions have received assurances of their religious exemption from the Department, while others have not sought or been granted such assurances. The allegations made in the complaint have not been proven.

The claims in the lawsuit are primarily focused on the way that the institutions treat students that are lesbian, gay, bisexual, transgender or queer (LGBTQ), or that support equal rights for LGBTQ students, specifically students reported being denied admission to the institutions or disciplined on the basis of their LGBTQ status. One student reported being disciplined because she posted about LGBTQ issues on social media and was suspected to be gay. Students reported being uncomfortable because they were not permitted to use their preferred pronouns or date/marry their chosen partner. Other students claimed that when they were harassed on the basis of their LGBTQ status, the institution did nothing to address their concerns. They also reported that they did not feel they could report harassment, or even sexual assault, due to concerns that the institution would fail to address it or worse, discipline the reporter.

While some institutions had statements making their positions on LGBTQ status clear to potential students, others are claimed not to have done so. This caught some students off guard after they arrived at the institution. The complaint alleges that many of the named plaintiffs feel unsafe and are concerned for their mental health as a result of the environment they are experiencing, with some having been encouraged to attend conversion therapy to change their LGBTQ status.

As a result of the named plaintiffs’ experiences, the lawsuit alleges that allowing federally-funded educational institutions to claim religious exemptions is a violation of the Equal Protection Clause of the U.S. Constitution. Specifically, the lawsuit claims that LGBTQ individuals are being targeted by these religious institutions on the basis of sex, which impermissibly interferes with the individuals exercising various rights to marriage, to be free from violence, to privacy and other rights. The lawsuit also claims that the religious exemption benefits primarily Christian institutions and therefore violates the Establishment Clause of the Constitution.

The analysis

The Title IX exemption was included to enact a balance between two important governmental interests – eliminating discrimination in federally-funded educational institutions and preserving religious freedoms and the separation of church and state. While prior cases have examined whether a Title IX exemption was appropriate in a particular instance, there is no prior court decision ruling on the constitutionality of the Title IX religious exemption as it currently exists. If the exemption is ruled unconstitutional, it is possible and perhaps likely that this ruling will be enforced not just in Oregon where the case was brought, but nationally. Of course, any such enforcement may be years into the future if it occurs at all, due to potential appeals.

In the meantime, religious institutions are advised to carefully watch the outcome of this case, as well as new guidance expected from the Department in the coming months. Institutions are also encouraged to consult with competent legal counsel regarding their options and expectations as the case proceeds.