Christian colleges enjoyed a win last week in the lawsuit Elizabeth Hunter, et al, Plaintiffs, v. United States Department Of Education, et al, Council For Christian Colleges & Universities, et al, after a ruling in U.S. District Court for the District of Oregon. The class action lawsuit was brought by the Religious Exemption Accountability Project or REAP. The judge, Ann Aiken, ruled against REAP and dismissed the suit.
According to its website, REAP “empowers queer, trans and non-binary students at more than 200 taxpayer-funded religious schools that actively discriminate on the basis of sexual orientation and gender identity/expression.” REAP’s lawsuit suit challenged the Title IX exemption for religious colleges. According to REAP, the suit was filed to “end the sexual, physical and psychological abuses perpetrated under the religious exemption to Title IX at thousands of federally-funded schools, colleges, and universities across America.”
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The REAP website says that LGBTQ+ students experience rampant levels of discrimination, abuse, and violence at religiously affiliated schools. REAP states that 12% of students at Christian colleges identify as non-heterosexual. It goes on to say that these students are prevented from dating the person of their choice, feeling accepted at school, or fully participating in all aspects of campus life. These students also experience depression, loneliness, alcohol use, and suicidal ideation. The group contends that 22% of LGTBQ+ college students are bullied, with 73% of those incidents occurring by someone on campus.
The College Fix stated that the focus of the suit was to allow men into women’s locker rooms and permit other LGBTQ+ policies and practices on campuses. The Title IX exemption can also allow these schools to prohibit same-sex relationships between students. REAP’s attorney, Paul Southwick, had told the Fix that the Religious Freedom Restoration Act does not protect taxpayer-funded actions (in this case, Christian colleges) that harm LGBTQ students.
In her decision, Aiken said that the plaintiffs did not have the necessary elements to state a legal claim. She wrote in part:
Plaintiffs have sufficiently alleged that Defendants caused Plaintiffs’ injuries by implementing a system that permits religiously affiliated schools to use religious exemptions to deny federally-funded educational services to current and prospective students.
Thus, an order requiring the rescinding of all prior religious exemptions to Title IX as applied to sexual and gender minority students; mandating that Defendants treat Title IX complaints from sexual and gender minority students at all taxpayer-funded religious colleges in the same manner as complaints at nonreligious colleges; and requiring Defendants to ensure that all federally-funded educational institutions respect the sexual orientation and gender identity of Plaintiffs would make Plaintiffs whole. Accordingly, no speculative inferences are necessary here to conclude that the relief requested will result in the Plaintiffs receiving the dignity and equal treatment they seek. Plaintiffs’ FAC satisfies standing requirements with respect to their claim for Equal Protection. Amendment by the proposed SAC and supplemental briefs would not be futile.
Here, Plaintiffs have provided voluminous allegations going toward the element of disparate impact—the first hurdle to mounting an equal protection claim.
However, Plaintiffs have submitted no allegations of discriminatory motivation on the part of those enacting the religious exemption. To the contrary, Plaintiffs argue that when Congress enacted Title IX, protections for—or discrimination against sexual and gender minorities—were “of no concern.” Plaintiffs provide no evidence and supply no allegations involving the above-listed factors for the Court to consider and evaluate whether Congress was motivated in part by a discriminatory purpose when it enacted the religious exemption.
Aiken also wrote:
The text of RFRA is clear that government granting exemptions does not constitute a violation, unless impermissible under Establishment Clause principles Plaintiffs also fail to allege facts to demonstrate that it is Defendants—the government actor— that has burdened Plaintiffs religious beliefs.
Attorney David Cortman of Alliance Defending Freedom, which represented the Council of Christian Colleges, hailed the ruling as a rejection of “an unfounded assault on the religious freedom of faith-based educational institutions,” adding that Title IX protects religious schools to live out their convictions. For its part, REAP vowed to continue its work, stating that it is grateful “that the Court recognized the harm Plaintiffs have suffered, but are sad to report that despite this, the Court held that they had not alleged a legal claim for which relief could be granted and dismissed their lawsuit.” It also said that “tens of thousands of LGBTQIA+ students across the country will continue to be discriminated against at universities receiving taxpayer money.”
No one should ever be bullied. And a college, Christian or not, should take disciplinary steps when it happens. And people should have access to counseling for substance abuse and depression. And adults are free to date and love whomever they wish. But if one attends a religious school, there is a reasonable expectation that one will adhere to the school’s values. Not too terribly far from where I am writing this sits BYU. If I, a non-Mormon, choose to become a full-time, on-campus student at the “Y,” I will be expected to hold to BYU’s honor code, which reflects the values of the Mormon Church. If I do not wish to do that, I can enroll at the University of Utah, Utah State University, or Utah Valley University.
REAP has an answer as to why LGBTQ+ students choose to attend religious schools in the first place. They list the potential reasons on a page that is partially obscured by a banner that asks the reader to subscribe to a mailing list or donate to see the full list. But here are a few of the reasons:
- Students can be both LGBTQ and religious.
- Students are reliant on others for financial support.
- Students feel family pressure to attend the school.
- Students may not yet be aware of their LGBTQ identity.
- Students may find the school a good fit for other reasons.
As to financial support or pressure to attend a school, one must ask that, given the increased awareness — and for that matter, power — of the LGBTQ+ lobby, are there no resources to place students in colleges more amenable to their lifestyle and finance their education? Given the growing power of the movement, it should be child’s play to tell a Christian college to shove its cis-gendered rules where the sun doesn’t shine and move on. Unless of course, the aim is not to educate a student but to re-educate a college.
As to harm, if a student is subject to violence, threats, or intimidation, no matter what their identity may be, that is a matter for the disciplinary system, campus security, and local law enforcement. Everyone has a right to be safe. If, however, one’s definition of harm means that a man is prohibited from hanging around the women’s locker room, one should examine one’s own intentions. Is it about justice, or oneself? Is there the potential for real harm to others down the road as a result of this precedent? At what point does “pride” become entitlement? We can argue about these things all day, but in reality, they are questions with which a Christian LGBTQ+ student must wrestle on their own.
If religious schools and organizations do not have the right to force their values on LGTBQ+ students, do LGBTQ+ students have the right to force their values on the schools?
And finally, Christian denominations and churches across the board in the United States have been trending toward the progressive side for years. Even at many religious schools, the LGBTQ+ voices and influence are growing, and many have clubs and organizations. Christianity is going more woke by the year, and the time will come for many religions where yesterday’s “demands” will become tomorrow’s standard operating procedures.
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