Thursday, January 21, 2016

OCR Promises More Transparency for Religious Exemptions

The Department of Education's Office for Civil Rights has promised a U.S. Senator that it will improve the public's access to information about institutions that have applied for and received exemptions from Title IX on religious grounds.  The statute permits religious institutions to seek exemptions from compliance on matters that conflict with religious doctrine. After receiving a letter from Senator Ron Wyden (D-Or) and others expressing concern about the exemption's affect on LGBT students' rights, OCR replied, in relevant part:

I think OCR should go even farther than just making the list of exemptions available on its own website; I think it should require exempt institutions to publish the fact of their exemption on their own publications and marketing materials.  This would be consistent with the agency's current approach to Title IX disclosure more generally, as it  requires every school subject to Title IX to include a nondiscrimination notice "on the recipient’s website, at various locations on campus, and in electronic and printed publications for general distribution" as well as include it "in any bulletins, announcements, publications, catalogs, application forms, or recruitment materials."  As a condition for granting the exemption, OCR should require religious institutions to including information about the exemption as part of these notices.

For additional background, analysis and critique of Title IX's religious exemption, see Amanda Bryk, Title IX Giveth and Title IX Taketh Away: How the Religious Exemption Eviscerates Protection Afforded Transgender Students Under Title IX, 37 Cardozo L. Rev. 751 (2015).