Council of Christian Colleges Seeks to Intervene in Department of Education Title IX Litigation

As an update to our August 6, 2021 post, and as reported in today’s Inside Higher Ed, the Council of Christian Colleges and Universities (the “CCCU”) filed a motion to intervene in a lawsuit that seeks to overturn a religious exemption to Title IX, the federal law that prohibits sex-based discrimination in education.

By way of background, Title IX is a federal civil rights law passed as part of the Education Amendments of 1972. This law protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. Title IX states that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Title IX applies to any institution receiving federal financial assistance from the Department of Education, including state and local educational agencies. Educational programs and activities that receive federal funds from the Department of Education must operate in a nondiscriminatory manner. Also, a recipient may not retaliate against any person for opposing an unlawful educational practice or policy, or because a person made charges, testified or participated in any complaint action under Title IX.

As relevant here, Title IX does not apply to an educational institution that is controlled by a religious organization to the extent that application of Title IX would be inconsistent with the religious tenets of the organization.

As reported in our earlier post, the lawsuit in which the CCCU seeks to intervene was filed in March by a group of LGBTQ+ current and former students at a variety of Christian institutions. The lawsuit argues that an exemption for religious colleges included in the Title IX statute is unconstitutional. It contends that the Department of Education (the “Department” or “DOE”) is duty-bound to protect LGBTQ+ students at all federally funded colleges, including religious colleges, from discrimination.

“The religious exemption to Title IX, however, seemingly permits the Department to breach its duty as to the more than 100,000 sexual and gender minority students attending religious colleges and universities where discrimination on the basis of sexual orientation and gender identity is codified in campus policies and openly practiced,” the lawsuit states.

According to the lawsuit, some of the students had their admissions offers revoked or were expelled when officials at the religious-affiliated colleges and universities they attended or hoped to attend learned they were gay. The lawsuit also alleges that some students kept their sexual orientation or gender identity secret on campus and reported being deeply fearful they would be expelled or lose their student housing if found out. Many of the plaintiffs allege that they faced harassment on campus.

The lawsuit names only the Department of Education and a department official as defendants, but Christian colleges are asking to join the suit so they can defend the religious exemption. Three Christian colleges already filed a motion seeking to intervene as defendants, and the CCCU filed a similar motion this week.

According to the motion to intervene, “CCCU comprises a wide variety of religious colleges, many of which have core religious tenets that conflict with Plaintiffs’ understanding of Title IX. Thus, to CCCU’s member colleges, the Title IX religious exemption has proven indispensable as contemporary notions of sexuality and gender depart, often substantially, from the religious beliefs that animate every aspect of Christian campus life. Because it contests the constitutionality of that exemption, this case presents an existential threat to religious higher education: Removing Title IX’s religious exemption, as applied to LGBT students or otherwise, will deprive religious colleges of the oxygen that gives them life by forbidding them, on pain of losing federal assistance for their students, from teaching and expecting adherence to their core religious beliefs.”

CCCU’s motion also asserts that the Biden administration is unlikely to adequately represent the Christian colleges’ interests "because the current Administration has already promised to ‘reverse’ what it calls the ‘misuse of broad exemptions’ to ‘discriminate against LGBTQ+ people’ -- a characterization of religious exemptions that the proposed intervenor categorically rejects.”

We will continue to provide updates as this litigation progresses.