Wednesday, July 27, 2016

Pepperdine Withdraws Title IX Exemption

Huffington Post was the first to report this week on Pepperdine University's written withdrawal of an earlier, 1976 request for a religious exemption under Title IX.  Specifically, the exemption allowed Pepperdine to discriminate against female students by excluding them from opportunities to preach in chapel and otherwise withhold support for their efforts to become ministers. It also permitted Pepperdine to punish students for engaging in "heterosexual relations outside of holy wedlock or in homosexual relations."

Earlier this year, however, Pepperdine's president wrote to the Department of Education withdrawing the earlier-requested exemption, noting that the university is "committed to complying with Title IX" and that it wanted this to be reflected in any public lists or databases of Title IX-exempt institutions. When the letter came to light this week, the university supplemented it with a statement explaining that the earlier exemption " does not fully reflect Pepperdine’s values today" and affirming that "Pepperdine’s mission and the goals of Title IX are aligned."

Pepperdine's move is an understandable public relations move. As the government provides more transparency on religious exemptions from Title IX, it is reasonable to predict that exempt institutions will increasingly contend with negative publicity. Pepperdine's express rejection of its own earlier exemption appears to suggest that the university is making that same calculation. Interestingly, Pepperdine is in the midst of a lawsuit in which two former female students alleged that they were harassed and penalized because of their relationship with each other. Pepperdine could have doubled down on its exemption and become the first institution to test whether the exemption works as a defense in third-party litigation (as opposed to applying only to government enforcement). But such a tactic would have cemented Pepperdine's reputation as an exempt institution and underscored our worse fears that the exemptions provide a license to discriminate. So rather than use the exemption as a shield, Pepperdine has put it away so that it would not become a sword in which it might impale itself.