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Biden admin. says it can defend Christian colleges' exemption to Title IX discrimination law

Merrick Garland
Attorney General Merrick Garland speaks at the Department of Justice on April 21, 2021 in Washington, D.C. |

The Biden administration says it can defend federal exemptions for faith-based colleges and opposed a motion by Christian organizations to intervene in a lawsuit seeking to strike down religious colleges' exemptions to Title IX law dealing with LGBT discrimination.

The Oregon-based Religious Exemption Accountability Project, an LGBT activist organization, filed a federal lawsuit in March on behalf of dozens of LGBT current and former students at several Christian colleges and universities who felt discriminated against because their school's upheld policies consistent with gender and sexuality beliefs. 

REAP’s lawsuit seeks to end what it says are “sexual, physical and psychological abuses perpetrated under the religious exemption to Title IX at thousands of federally-funded schools, colleges and universities across America." It wants to strip the ability of schools that espouse traditional sexuality beliefs to be protected from sex discrimination law. Some argue the federal ban on sex discrimination includes discrimination based on sexual orientation and gender identity.  

Considering the exemption is utilized by dozens of prominent Christian colleges, a prominent legal organization and an association representing over 140 Christian colleges submitted motions to intervene in the lawsuit, Hunter v. U.S. Department of Education

The Alliance Defending Freedom, a legal group that has won several Supreme Court cases in recent years, and the Council for Christian Colleges and Universities are skeptical of the administration's ability to defend the exemption, given the administration's policies and statements on prohibiting LGBT discrimination. 

In the filing opposing intervention submitted Tuesday, the Justice Department said the  “proposed Intervenors have failed to show that either mandatory or permissive intervention is warranted here" and haven't shown that the U.S. government "will not adequately represent their interests." 

"Specifically, the Federal Defendants’ ultimate objective is to defend the statutory exemption and its current application by [Education Department], which is the objective sought by the Proposed Intervenors here," the motion assures.

The government refuted the arguments that it can't adequately defend the religious exemption because of the "statements and actions taken by the current Administration regarding protecting LGBTQ+ individuals from discrimination in a variety of contexts." The motion argues that proposed interveners "leap to concluding" that the administration won't defend the exemption. 

"[N]one of the statements cited by the Proposed Intervenors expressly discusses the Religious Exemption in Title IX or suggests that the Federal Defendants will not defend the constitutionality of that statutory exemption," the motion reads.

"To be sure, the Department of Education is conducting a comprehensive review of its regulations implementing Title IX pursuant to Executive Order 14,021, which sets forth the current administration’s policy on guaranteeing an educational environment free from discrimination on the basis of sex."

The motion assures that "neither the Administration’s stated policy positions nor the Department’s review of existing regulations abrogate the government’s duty to defend federal statutes and regulations in court as a legal matter."

Further, the government argues that the groups wanting to intervene can only "speculate" that the Biden administration will "back away from a full defense of the Religious Exemption and its challenged application." 

The Christian Post reached out to the CCCU for comment and was pointed to the organization's May 12 statement on why it looks to intervene in the case. 

CCCU President Shirley Hoogstra told The Washington Post that she was encouraged that the administration wants to defend the religious exemption. However, she believes Christian schools should still have a party representing them in the case. 

"This lawsuit would take federal financial aid away from hundreds of thousands of students who choose to attend faith-based colleges and universities," CCCU's May 12 statement argues. "This would restrict student choice in an unprecedented way, preventing middle- and low-income students from being able to take their federal aid to these institutions."

REAP was disappointed with the filing submitted on Tuesday and objected to the strong wording found in the DOJ's original filing. The Justice Department updated the filing after objections were raised to the motion saying the administration would "vigorously" defend the religious exemption.

REAP argues against taxpayer funding for schools that it claims "discriminate against #LGBTQ students, which includes expelling them for being queer & forcing them into 'conversion therapy.'"

"The Biden administration did not need to defend this unconstitutional religious exemption, and they certainly did not need to say that it 'shares the same ultimate objective' as anti-LGBTQ extremist group Alliance Defending Freedom," REAP Director Paul Southwick said in a statement. 

In a tweet, REAP claimed: "This out-of-touch position will only serve to harm more LGBTQ students at religious colleges – & permit continued taxpayer-funded discrimination at these institutions."

In May, CCCU filed its motion to intervene, stating that removing Title IX’s religious exemption poses an “existential threat to religious higher education.” 

CCCU argues that removing religious exemptions “will deprive religious colleges of the oxygen that gives them life by forbidding them, on pain of losing federal assistance for their students, from teaching and expecting adherence to their core religious beliefs.”

Title IX of the Civil Rights Act forbids sex-based discrimination in education. However, religious institutions with biblical definitions for marriage and sexuality can request a religious exemption that allows them to adhere to scriptural beliefs on matters of sexuality and still receive grant funding from the federal government. 

Seven out of 10 CCCU students receive some federal funding, according to the association. The CCCU maintains that making these schools ineligible for funding would have a "disproportionate impact on low-income and first-generation college students, as well as students from racial and ethnic minority groups."

"CCCU institutions subscribe to sincerely held biblical beliefs, which include specific religious convictions around human sexuality and gender, and are transparent about their policies and behavior guidelines, which students voluntarily agree to when they choose to attend the institution," CCCU argues. 

ADF filed a motion to intervene in the lawsuit in April on behalf of college students at Corban University in Oregon, William Jessup University in California and Phoenix Seminary in Arizona. 

“The very existence of Title IX’s Religious Exemption is at stake here, yet none of the current parties [in the lawsuit] are religious educational institutions that benefit from this exemption,” ADF’s motion states.

“The Court should not assess the Religious Exemption’s constitutionality without hearing from the very institutions the exemption was designed to protect,” the motion continued.

ADF contends the Biden administration seeks to redefine Title IX in a way that would threaten the freedom of religious schools. President Biden signed an executive order to prevent and combat discrimination based on gender identity or sexual orientation on his first day in office. 

Last month, a judge dismissed a Christian college's lawsuit against a directive on LGBT discrimination from the Department of Housing and Urban Development that the school feared would require it to open womens' dorm rooms and showers to trans-identified male students.

However, attorneys representing HUD argued in a hearing that the memorandum was “not directed at the college and does not specifically address the kinds of issues the college has raised here — showers, or roommates.” The attorney further stressed that there was no immediate threat to the college.

Emily Wood is a reporter for The Christian Post. She can be reached at: emily.wood@christianpost.com

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