Saturday, July 12, 2014

George Fox University's Religious Exemption From Title IX Compliance

George Fox University is a Christian institution in Oregon that was founded on Quaker principles.  In April, it denied a transgender student named Jayce M. the right to live in on-campus housing consistent with his male gender identity, offering him instead the opportunity to live with other men in off-campus housing if certain conditions were met.  With the help of attorneys, Jayce filed a Title IX complaint with the Department of Education's Office for Civil Rights, arguing that the decision discriminated against him on the basis of gender identity.  The complaint seemed poised to allow OCR the opportunity to give effect to the broad, trans-inclusive definition of sex discrimination that it has lately been espousing, such most recently in its  guidance on sexual assault. But instead, OCR has granted a religious exemption to George Fox that has effectively immunized the institution from Jayce's Title IX challenge. 

What is the legal  basis for a religious exemption from Title IX?  The statute itself exempts "any 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 effectively creates two conditions: (1) that the school actually be controlled by a religious organization, i.e., not just a private school with a certain religious tradition; and (2) a showing that Title IX would apply in such a way that is inconsistent with the organization's religious tenets. Additionally, Title IX regulations require institutions to file a statement with OCR "identifying the provisions of this part which conflict with a specific tenet of the religious organization." 34 C.F.R. 106.12.

Thus, the exemption is narrow in scope -- in that it only applies to the aspects of Title IX for which the institution can articulate a conflict with religious tenets -- and narrow in application -- in that it only applies to institutions that are run by churches, not just that happen to have a religious outlook or tradition. Both limitations are important to ensure that Title IX doesn't contain a giant loophole that offers any private school a justification for using federal money in the service of discrimination that would otherwise be prohibited by law.  Interestingly, when I looked up the business status for George Fox University, I learned that it is incorporated as "public benefit" non-profit corporation, and not a religious non-profit corporation (which is also a type of corporation that exists in Oregon).  In other words, I am having trouble confirming that George Fox University, despite its Quaker heritage, is actually controlled by a religious organization as the statute requires.  (In contrast, when I went onto Notre Dame's website, it took me two seconds to find the name of the religious organization that controls the school.)   It is also interesting to note, as this article does, that GFU applied for the religious exemption after Jayce had already applied to live in male housing.  One would think that if Title IX's application to transgender students conflicted with some fundamental tenet of Quakerism, the institution would have applied for the exemption in advance, in the manner contemplated by the regulations.  Applying for it in retrospect gives the appearance of a defensive move.

Just recently, the Supreme Court ended its Term with a decision that allows religious colleges to opt out of the requirements of the Affordable Care Act to make coverage for birth control available to employees and students. If this decision emboldens more religious institutions to claim exemptions from other laws as well, like Title IX, it will be increasingly important for OCR to carefully scrutinize all applications for religious exemption to ensure that both requirements -- the religious tenet conflict AND control by a religious entity -- are met.