Title IX of the Education Amendments of 1972 prohibits educational programs or activities that receive federal funds from excluding, denying benefits to, or subjecting to discrimination any person on the basis of sex. Title IX includes a provision exempting from this anti-discrimination rule any educational institution that “is controlled by a religious organization” with “religious tenets” inconsistent with complying with Title IX.
In 2020, the U.S. Supreme Court ruled in Bostock v. Clayton County, a decision interpreting Title VII of the Civil Rights Act of 1964, that it is impossible to discriminate on the basis of sexual orientation or transgender status without discriminating “because of sex.” In 2021, early in the Biden administration, the U.S. Department of Education announced that it would apply Bostock’s reasoning to interpret Title IX, and would accept complaints of discrimination from students of educational institutions that are subject to Title IX because they receive federal funds. In 2020, the last year of the Trump administration, the Education Department adopted a regulation making it easier for religious schools to benefit from the exemption language in Title IX. Prior to these new regulations, schools that wanted to claim the exemption to avoid DoE investigations had to file a written request to DoE to be determined to qualify for the exemption. The 2020 regulations made such written applications optional, and said that religious educational institutions could raise the exemption to get an investigation dismissed without having made such a written request.
Responding to these developments, an organization called the Religious Exemption Accountability Project (REAP) was formed to bring a lawsuit on behalf of LGBTQ people who have discrimination claims against religious schools, seeking a declaration that the statutory exemption is unconstitutional and that the 2020 Trump administration regulation violates the Administrative Procedure Act. The lawsuit against the Department of Education and the Assistant Secretary for Civil Rights, which was filed in the U.S. District Court in Oregon in March 2021, was ultimately expanded to include claims by forty LGBTQ+ individuals. The Council for Christian Colleges & Universities and some other organizations intervened to defend the exemptions that they enjoy under Title IX.
The essence of REAP’s claim is that it is unconstitutional for the government to provide funding to religious colleges and universities that discriminate on the basis of sexual orientation or gender identity.
On January 12, 2023, U.S. District Judge Ann Aiken granted a motion by the defendants and the intervenors to dismiss the lawsuit. Hunter v. U.S. Department of Education, 2023 WL 172199, 2023 U.S. Dist. LEXIS 5745 (D. Ore., 1/12/23).
Although Judge Aiken rejected the defendants’ argument that the plaintiffs lacked standing to bring their constitutional claims against DoE, which enforces Title IX, she accepted the defendants’ argument that the plaintiffs lack standing to assert their Administrative Procedure Act claim.
More to the point, however, Judge Aiken found that the Supreme Court has upheld statutory exemptions from compliance with federal laws by religious organizations, virtually foreclosing the Equal Protection and First Amendment claims asserted by the plaintiffs. “Here, Plaintiffs have provided voluminous allegations going toward the element of disparate impact – the first hurdle to mounting an equal protection claim,” wrote Judge Aiken. “However, Plaintiffs have submitted no allegations of discriminatory motivation on the part of those enacting the religious exemption.”
This is significant because the Supreme Court has held that the Equal Protection requirement extends only to intentional discrimination by the government. “To the contrary,” wrote Aiken, “Plaintiffs argue that when Congress enacted Title IX [in 1972], protections against sexual and gender minorities – were ‘of no concern.’”
“Plaintiffs provide no evidence and supply no allegations … for the Court to consider and evaluate whether Congress was motivated in part by a discriminatory purpose when it enacted the religious exemption. The Court cannot conclude that Plaintiffs’ assertion that ‘Congress enacted the religious exemption to permit discrimination based on sex, sexual orientation, and gender identity’ is sufficient.” She deemed such statements to be “conclusory” and “therefore not entitled to an assumption of truth.”
The judge pointed out that the Ninth Circuit Court of Appeals, whose jurisdiction covers Oregon, has ruled that statutes that are alleged to discriminate based on sexual orientation or gender identity are subject to “heightened scrutiny,” which means that the challenge will fail if the statute is found to “serve important government objectives” and “the discriminatory means employed are substantially related to the achievement of those objectives.”
“Plaintiffs have not alleged how the religious exemption fails intermediate scrutiny,” wrote Judge Aiken. “Defendants point out that the Ninth Circuit has recognized ‘that free exercise of religion and conscience is undoubtedly, fundamentally important.’ Exempting religious controlled educational institutions from Title IX – and only to the extent that a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organization — is substantially related to the government’s objective of accommodating religious exercise.”
The judge concluded that the plaintiffs’ substantive due process claim was too vague, commenting that “plaintiffs invoke only a vague reference to ‘due process’ violations, and do not set forth the elements of a substantive due process claim or facts supporting such a claim.”
Perhaps the strongest arguments for the plaintiffs would be their Establishment Clause argument – that granting the exemption shows government favoritism for religions that discriminate on the basis of sex, sexual orientation, or gender identity, but the court found this argument to be foreclosed by the Supreme Court’s decisions upholding various religious exemptions for the purpose of accommodating an employer’s religious free exercise, including a provision in Title VII that exempts religious employers from the statute’s general prohibition on employment discrimination on the basis of religion.
The court concluded that the plaintiffs had not identified “legal authority that would distinguish this case from the facts and law at issue” in the Title VII cases. Furthermore, she wrote, “Though Plaintiffs have much to say about Defendants [implementing the exclusion provision], Plaintiffs have failed to demonstrate any impermissible purpose Congress had in enacting the religious exemption,” especially in light of the Supreme Court’s decisions upholding religious exemptions under other statutes. Indeed, the court found, by exempting religious schools from Title IX, Congress could be said to be avoiding “excessive entanglement” between the government and religion by eliminating DoE investigations of discrimination claims against religious schools.
The court also rejected the plaintiffs’ argument that the religious school exemption somehow violated the First Amendment free speech rights of students by creating a “chilling effect” on student speech. She found that the statute “contains no reference to speech or viewpoint… Plaintiffs’ allegation that Defendants lack a compelling governmental interest in ‘funding private educational institutions that restrict First Amendment rights…’ asserts that it is the ‘institutions that restrict’ Plaintiffs’ rights. In so alleging,” she continued, “Plaintiffs fail to supply any facts connecting Defendants’ provision of ‘funding’ to educational institutions with a free speech violation. As such, Plaintiffs have not pled ‘factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’”
Finally, the court rejected the plaintiffs’ argument that the religious exemption violated their own right to free exercise of their religious beliefs in violation of the Religious Freedom Restoration Act. “The text of RFRA is clear that government granting exemptions does not constitute a violation, unless impermissible under Establishment Clause principles,” she wrote.
REAP must now decide whether to appeal this ruling to the Ninth Circuit. In light of the Ninth Circuit precedents on which the court relied, winning an appeal is likely to be a long shot.
Judge Aiken was appointed to the district court by President Bill Clinton in 1998.