Tuesday, July 29, 2014

Understanding the Religious Exemptions from Title IX

We've blogged recently about a handful of religious schools -- namely George Fox, Simpson, and Spring Arbor universities -- that have been granted an exemption from complying with Title IX's application to transgender students.  This post is intended to provide more background and context for the process and scope of Title IX's religious exemptions more generally, which is something that until now has not really come up a lot -- at least since we've been blogging.

First, as I mentioned in my George Fox post, the basis for the religious exemption is contained in the statutory text of Title IX.  See 20 U.S.C. 1681(a)(3) (exempting "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"). Title IX's implementing regulations, promulgated in 1975, also acknowledge the religious exemption and require institutions seeking the exemption 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.

The Department of Education's Office for Civil Rights requires educational institutions to submit paperwork (called an "Assurance of Compliance") when they receive federal funds, promising that they will comply with Title IX and the other civil rights law that are conditioned on federal funds.  In 1977, OCR (which was then part of the Department of Health, Education, and Welfare) published instructions for submitting the assurance.  Contained in that document were specific instructions for applying for the religious exemption -- included there because OCR contemplates that requests for exemption will be filed at that time, though that is not a legal requirement and institutions can apply for the exemption at any time. 

These instructions clarified three types of religious institutions that are eligible for the exemption -- criteria that OCR still uses today:

1. A school or department of divinity -- meaning, an institution that trains ministers and other members of the clergy, like a seminary. This category of exempt-eligible schools seems influenced by and consistent with, the recognized doctrine of "ministerial exemption" from civil rights laws.  The First Amendment's protections of freedom of religion limits the degree to which government can interfere with such core church functions as hiring (and here, training) personnel that are integral to the practice of religion -- like clergy and other religious leaders.  

2. An institution that requires its faculty, students, or employees to belong to the religion of the organization by which it claims to be controlled.  My impression of this category is that it borrows from the legal distinction in public accommodations law between organizations or establishments that are open to the public and those that only open to members -- the latter receiving more latitude to exclude people in ways that would otherwise be unlawful discrimination.  In general, the justification for this type of exemption is, again, rooted in the First Amendment -- the idea being that forcing an organization to accept as members people who do not adhere to its beliefs interferes with the practice of religion.  Notably, however, religious undergraduate institutions are already permitted to discriminate on the basis of sex in admissions by virtue of being private.  So this category contemplates allowing religious institutions to take that discrimination one step farther: to discrimination in some way in the manner that students or faculty are treated, rather than whether they are eligible to be admitted or hired.   

3. An institution whose charter, catalog, or other official publication contains an explicit statement that it is controlled by a religious organization or an organization thereof or is committed to the doctrines of a particular religion, and that members of its controlling body are appointed by the controlling religious organization, and that it receives a significant amount of financial support from the controlling religious organization.  This category thus seeks to differentiate between private institutions that have a religious affiliation and tradition (a category that, as Kris pointed out, could include virtually all private colleges founded before 1900) and institutions that are actually subject to religious control -- the latter requiring (a) an express statement of that control by or adherence to that religion; (b) trustees or regents, etc. who are appointed by a religious organization; and (c) financial support from that religious organization.Reportedly, all three educational institutions that have received religious exemptions in recent weeks -- George Fox, Simpson, and Spring Arbor universities -- qualified for the exemption under this third category.  George Fox --whose religious control I questioned in an earlier post -- is in fact controlled by the Northwest Yearly Meeting of Friends, which appoints four of its seven trustees.  Also notable is that it appears OCR is open to revisiting the question of religious control in the event of a challenge, as the Assistant Secretary provided assurance that the agency would "potentially reach out to verify further whether a school is controlled by their stated religious organization" if it receives a complaint for something potentially subject to an exemption that has been granted.

In addition to being controlled by a religious organization, the exemption only applies to institutions whose religious tenets conflict with some aspect of Title IX compliance.  Historically, the most common example of such conflict related to regulations prohibiting discrimination on the basis of pregnancy.  For example, one exemption considered in 1987 congressional report described an exemption for a school whose religion prohibited unmarried pregnant student to continue to live on campus, or to have unmarried female employees serving as role models for female students. Other early exemptions related to sports, physical activity, and modesty, such as an exemption that would allow a school to prohibit "mixed swimming" and another to potentially restrict the athletic opportunities of female teams by sending home opponents who show up in immodest uniforms.

Recent requests for exemption have focused on Title IX's application to transgender students, accommodation of whom would require compromise of the belief that God created man and woman to procreate heterosexually.  For example, Simpson University stated its belief that it is sinful to "construct one's own sexual identity by medically altering the human body, cross dressing, or similarly practicing behaviors characteristic of the opposite sex."  Because their religions do not validate transgender identities, Simpson and the other exempt universities sought permission to exclude transgender students from gender-consonant housing so as to avoid sinful "cohabitation" between members of the "opposite sex."  On related grounds (i.e., opposition to the mixing of "different" sexes) they received permission to exclude transgender students from locker rooms, rest rooms, and athletic teams that don't accord to their assigned sex at birth. 

In conclusion, it appears that OCR does use published criteria to isolate those religious institutions that are eligible for the exemption by virtue of being subject to a religious organization's control.  It also appears to have required an articulated conflict between Title IX compliance and the institution's faith.  Personally, I don't agree that Title IX should have provided educational institutions that accept federal funds and which already have permission to ignore Title IX when it comes to admissions so much latitude to discriminate. That's an awful lot of having one's cake and eating it too.  But after digging into the matter a little deeper I am at least reassured that OCR is applying the exemption in a manner consistent with the text of Title IX.