The Volokh Conspiracy

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Title IX

Title IX Statutory Exemption for Religious Institutions Doesn't Violate Constitutional Rights of Sexual Minorities


From today's decision by Judge Ann Aiken (D. Ore.) in Hunter v. U.S. Dep't of Ed.; I think this is quite right, because the government has no constitutional obligation to prohibit sex discrimination (or race discrimination, religious discrimination political discrimination, or what have you) by private institutions, even ones that get government funds:

Plaintiffs challenge Defendants' application of the religious exemption included in Title IX of the Education Amendments of 1972 … to sexual and gender minority students who attend private religious colleges and universities that receive federal funding….

Title IX prohibits educational programs or activities receiving federal funds from excluding, denying benefits to, or subjecting to discrimination any person on the basis of sex…. One narrow exception to Title IX is when an educational institution "is controlled by a religious organization" with "religious tenets" inconsistent with the application of Title IX….

Plaintiffs are forty LGBTQ+ people who applied to, attended, or currently attend religious colleges and universities ("religious schools") that receive federal funding. They allege that their schools have discriminated against them by, among other things, subjecting them to discipline (including expulsion), rejecting their applications for admission, and rescinding their admissions because of their sexual orientation or gender identity. Plaintiffs seek to represent a class of "LGBTQ+ students who attend taxpayer-funded religious colleges and universities that openly discriminate against them in both policy and practice." [Plaintiffs' claims appear to be that sexual orientation and gender identity discrimination are forms of sex discrimination that would be forbidden by Title IX were it not for the religious exemption, just as the Court has concluded that Title VII's ban on sex discrimination in employment generally bans sexual orientation discrimination and gender identity discrimination as well.—ed.]

The court rejected plaintiffs' equal protection claim (under the "equal protection component" of the Fifth Amendment Due Process Clause); a short excerpt:

Plaintiffs have submitted no allegations of discriminatory motivation on the part of those enacting the religious exemption. To the contrary, Plaintiffs argue that when Congress enacted Title IX, protections for—or discrimination against sexual and gender minorities—were "of no concern." …

It also rejected plaintiffs' Establishment Clause challenge, citing Amos v. Corp. of Presiding Bishop (1987), which upheld a statutory Title VII exemption for religious institutions from the ban on religious discrimination in employment:

[T]he Supreme Court has stated that "[a] law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose." … The court ["]has never indicated that rules that give special consideration to religious groups are per se invalid." Further, a law does not violate the Establishment Clause "merely" because it "happens to coincide or harmonize with the tenets of some or all religions."

The court rejected plaintiffs' First Amendment argument:

On its face, the religious exemption does not aim at the suppression of speech, as it does not distinguish between prohibited and permitted activity—such as association or assembly—on the basis of viewpoint, nor does it license government authorities (like Defendants) to administer the statute on the basis of such constitutionally impermissible criteria….

And the court rejected plaintiffs' RFRA claim:

[T]o state a claim under the First Amendment or RFRA, Plaintiffs must allege that their injuries are caused by the government, not private actors. The fact that a private entity receives governmental funding or is subject to regulation does not convert its conduct into government action. See Blum v. Yaretsky (1982). Nor does the government's acquiescence, approval, or encouragement of private conduct. See id.; Flagg Bros., Inc. v. Brooks (1978)….

These are all just excerpts; read the opinion for more.

UPDATE [1/13/23]: Congratulations to Carol Federighi and Elliott Davis, who represent the government; to Herbert Grey and Gene Schaerr, Nicholas Miller, and Joshua Prince (the last three from Schaerr | Jaffe LLP), who represent intervenors Council for Christian Colleges & Universities; and to Kristen Waggoner, David Cortman, Ryan Tucker, and Mark  Lippelmann (Alliance Defending Freedom), who represent intervenors Western Baptist College d/b/a Corban University, William Jessup University, and Phoenix Seminary. Disclosure: I'm affiliated on a part-part-part-time basis with the Schaerr | Jaffe firm, but didn't realize they were involved in this case until after I put up this post.