NPR's Story on Title IX and Religious Institutions Lacks Context

Yesterday NPR ran a story on All Things Considered addressing the conflicts some religious institutions face between upholding their religious beliefs and respecting/including LGBT individuals and identities. I liked that the story, and its counterpart on yesterday's Morning Edition, captured some of the nuance and avoided the reductionist narrative of Christians versus Queers. Listeners heard from college administrators at Christian institutions that respect and support LGBT students, as well as from LGBT students who, as Christians themselves, appreciate and genuinely feel included by their Christian college communities.

But when ATC's segment turned its focus on the supposed fear and worry on the part of some Christian institutions that they could lose federal funding if they do not endorse LGBT rights, the framing of this story started playing into Christian propaganda.  The report neglected to include important context that shows there is no actual reason for religious institutions to worry.

First, OCR has never revoked any institution's federal funding in the entire lifetime of Title IX. Though general, that seems like kind of an important point to make when specifically discussing concern that this could happen.

Second, thanks to the current presidential administration, OCR will not enforce Title IX's application to transgender rights. This was mentioned briefly in the report, but its significance was not addressed. Religious institutions have zero reason to fear that OCR is going to start requiring institutions of any kind, religious or not, to house transgender students or let them use facilities according to their gender identities. (Courts are another story, but courts do not have the power to revoke federal funding.) 
 
Third, even confining religious institutions' fear to the anticipation that OCR could in the future return to its former position on LGBT rights, it still needs to be emphasized that Title IX exempts religious institutions from any part of Title IX that conflicts with their religious beliefs.  All a religious institution has to do is send in a letter that explains what part of Title IX conflicts with what religious tenet.

Fourth -- and this was completely missing from the story -- since 1976, OCR has handed out these religious exemptions like candy.  Not one single exemption request has ever been denied. Even the previous administration granted all the exemption requests it received from Christian colleges seeking to preserve their right to discriminate against LGBT students.  There is absolutely no reason to think that OCR would pick this moment to break with 40+ years of precedent and start denying or revoking those exemption requests.

The framing of this story bothered me because the current administration has done everything it can to support religious freedom, and everything it can to roll back LGBT civil rights. Yet somehow the narrative of this story is that the civil rights of religious institutions are the ones at risk.  This is exactly what the right wing media does when it reports, for example, on the imaginary war on Christmas.  I hoped for better from mainstream media. 

Another Religious Exemption Withdrawn

Another university (see this earlier post) has formally distanced itself from an earlier request for a religious exemption under Title IX. The Chronicle of Higher Education reports that Loyola University of New Orleans has written to the Department of Education to ensure that the agency no longer considers it among the institutions that have historically or recently exercised their statutory right to opt out of Title IX provisions that conflict with religious tenets.

In Loyola's exemption request, which it filed in 1986, the institution affirmed that regulatory obligations to include "termination of pregnancy or recovery therefrom" in its student health insurance plans conflicted with its Catholic tenets opposed to abortion. Today, however, the institution no longer offers a student health insurance plan, so the exemption is no longer necessary.

As the Chronicle's article points out, there was no legal reason for the institution to formally disclaim an exemption that only pertains to an obsolete program. Thus, the purpose of the letter seems to be entirely a matter of public relations. As religious institutions have lately rushed to claim exemptions that would permit them to discriminate against LGBT students, the list of religiously-exempt institutions has acquired a certain degree of notoriety. Loyola, like Pepperdine, looks to be going out of its way to distance itself from the other institutions on the list.

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.

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).

Everyone's talking about waivers

Since Erin wrote about Christian-identified colleges asking for Title IX exemptions, the topic has been getting a great deal of attention in the media. As a reminder, these waivers do not permit complete exemption from Title IX and every school can craft its request however it pleases, but waivers can (and have) be(en) used to: expel transgender students and unmarried women who get pregnant, deny transgender persons access to single gender spaces such as bathrooms, locker rooms, and housing, deny married housing to same-sex couples (students, faculty, and staff)

• The issue of federally sanctioned discrimination against LGBT students in America's institutions of higher learning has US lawmakers taking notice. A group of senators, including Bernie Sanders, Al Franken, Tammy Baldwin, and Barbara Boxer, have asked Secretary of Education for "greater transparency" in the waiver process. They want, at the very least, a public list of the schools that have asked for and received waivers stressing the need for an informed choice by students and parents.
• The Human Rights Campaign (HRC) has seconded that motion (or maybe firsted?--not sure who made their announcement first). The group issued a report asking for a list and that the Department of Education keep (publicly available) statistics about the number of requests and waivers granted. HRC's report included some of these statistics, which document the rapid rise in requests from one in 2012 to over 40 in 2015. About 2 dozen requests are still being considered by the Department of Education, but it has yet to deny a school a waiver.
• As Erin noted in her original post, there is a list of these schools. But it is being kept and published by an LGBT publication, The Column, out of Minnesota. The Column got the list via FOIA requests and what they have done with the information is very impressive because it is more than just a list of the schools. It has an interactive map, similar to the one HuffPo has been keeping on schools under investigation for Title IX violations regarding the handling of sexual assault. It may be the best source for now if one is interested in knowing which schools have made and/or been granted waivers and what they are requesting.
• Response by conservative Christian groups to the request for lists has used phrases like blacklisting, public shaming, religious freedom, and stifling diversity. Some groups, like the Southern Baptist Convention and the Christian Legal Society, have been providing training and advice to schools seeking waivers, which is why many of the ones filed in the past year are nearly identical. All of these are available at the link to The Column's piece.

Article Identifies Religious Institutions Exempt from Title IX

Title IX permits religious institutions to claim an exemption for matters where Title IX's compliance conflicts with religious doctrine. In the wake of Department of Education's increasing tendency to apply Title IX to discrimination against LGBT individuals, religious institutions have increasing utilized the provision to opt out of the law's nondiscrimination mandate.  While a couple of examples had been made public, it's been difficult to find a complete list of which institutions are opting out of Title IX on religious grounds. 

Until now. Earlier this week, a news service called The Column published a complete list of religious institutions claiming exemption under Title IX, 27 of which have been approved by the Department o Education thus far. The article also exposes what appears to be a concerted effort by religious schools to utilize the exemption for the purpose of exclude LGBT students. For example, Baptist church leaders in Texas passed a resolution denouncing transgender individuals so that affiliated education institutions would have evidence of a doctrinal conflict to use in their Title IX exemption applications. The Christian Legal Society has provided training and model language for religious institutions to use in support of their applications.

Transgender individuals seem to be the primary target for exempt institutions, who cite in their applications (which are helpfully appended to the article) religious beliefs about the immutability of sex. They have been granted exemptions from regulations governing admissions (although, private undergraduate institutions already do not have to comply with Title IX's application to admissions) and regulations that could be interpreted to allow transgender individuals access to sex-segregated facilities and athletics programs in accordance with their gender identities. In addition to transgender students, another targeted group appears to be unmarried and pregnant students, as many religious institutions have received exemption from the requirement under Title IX to not discriminate on the basis of pregnancy, such as by expelling pregnant students or denying them certain accommodations. 

As the article notes, the exemption operates to allow $130 million annually in federal funding to support institutions that discriminate in ways that are otherwise prohibited under law, an idea that many find objectionable.  It is also troubling that information about the exemption is difficult to find. Students or employees who are subject to discrimination at these institutions may be surprised to find out that they are not legally protected, and might have made different choices about where to enroll or accept a job if they had known.  For this reason, I am going to type out the entire list of institutions who have received or are claiming such exemptions, to increase the likelihood that this information can be discovered by those searching for information about the school. The list is provided after the jump.

Catholic Diocese in PA Bans Schools' Participation in Coed Sports

The Harrisburg, Pennsylvania Catholic Diocese has prohibited its schools from participating in coed sports where "substantial and potentially immodest physical contact" could occur. The policy, which also cites "safety" as a motivating concern, not only prohibits area Catholic schools from integrating their wrestling, football, and rugby teams, but also requires their teams for forfeit games or matches against (or against teams that include) opposite-sex opponents.

The policy change, which went into effect this summer, coincides with a federal district court ruling earlier this year that acknowledged a female student's right under the Constitution's Equal Protection Clause to try out for her public middle school's wrestling team. Because the Catholic schools of Harrisburg compete against public schools that would be subject to the ruling, it seems plausible that that the court's decision was at least part of the Diocese's motivation to enact its new policy.

Are there any legal implications of the Diocese's new policy?  After all, Catholic schools, by virtue of being private rather than government-run, are not subject to the Equal Protection Clause. Therefore, despite the fact that courts have repeatedly rejected the generalizations and stereotypes (like safety and modesty) that underlie most decisions to separate girls and boys in sports, such rulings are not binding on private schools like those run by the Diocese. Moreover, while Title IX would apply to any of those private schools should they happen to accept federal funds (such as, for instance, to run a school lunch program), Title IX is strangely permissive of the segregation of contact sports. Therefore, a student who opts in to private, Catholic education has no legal right to try out for teams designated for the other sex. 

But I also think about the rights of students at public schools whose athletic opportunities are limited by virtue of their schools' decision to schedule competition against Catholic schools who are subject to this policy. Public school students, whose rights are protected the Equal Protection Clause, have the right to play on coed teams. And even though Title IX does not require a school to allow coed contact sports, schools that do allow it are prohibited by Title IX from discriminating on the basis of sex against those who make the team. When public schools schedule athletic competition against a school that is required to forfeit, that school's coed team ends up with fewer opportunities for competition compared to the teams that are not coed. Or, the girls on that coed team, who could possibly be benched or volunteer not to play in order to preserve the game, end up with fewer competitive opportunities. Either way, scheduling games against the Catholic schools creates discrimination against those teams that have a female participant (and thus, on the basis of in sex). In the interest of compliance with Title IX and the Equal Protection Clause, public schools ought to leave the Catholic schools off of their competition schedules. The law may not insist that private Catholic schools treat students equally on the basis of sex. But the consequences of a Catholic policy should not be allowed to impair the experience of coed participants at public schools. 

Even with exemption, George Fox not off hook

As we noted, George Fox University was granted a religious exemption allowing it to enforce its policy that students will be housed by their anatomical sex.
But the case for the transgender student who is asking to be housed with other male students is not over. Even though the university is now exempt from a Title IX lawsuit over this, the Justice Department is looking into whether the university's housing policy violates federal housing laws banning discrimination.
We were pleased to see our friend and colleague Jennifer Levi, who is the director of the Transgender Rights Project for GLADD, weigh in:
“What we’ve learned in the few cases that have gone forward is that the only humane and consistent way to determine a person’s sex is based on their lived experience as male or female, that any other approach, whether anatomy or chromosomes, will discriminate against some people."

George Fox did change its policy to say that it would house students based on anatomical sex rather than birth sex (the original policy). As I already noted, this is both a very conservative and burdensome standard. And I have a hard time believing that they will start to check the anatomy of every student to make sure he or she is housed correctly. But if they do, they could call on the IOC and IAAF for some advice. Those organizations have a long history of trying to determine gender based on anatomy. Of course, even those groups have given that up and are now using (in equally problematic ways) chromosome testing. 

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.

Two more religious exemptions

Spring Arbor University and Simpson University have both asked for and been granted Title IX exemptions based on religious grounds from the Department of Education. This means that the Michigan and California schools will be allowed to discriminate on the basis of gender identity.
George Fox, as we have written about, also received a religious exemption after asking for one that would allow them to deny housing (all of which is sex segregated) to a transgender student.
Are we seeing a pattern here?
The DOE is saying there is very little it can do about religious exemptions. But what standards are being applied when assessing a request for religious exemption?
A representative from Spring Arbor University has said that the school is "Christ-centered." But what does that mean? They say they are affiliated with the Methodist Free Church. But what kind of affiliation creates a case for exemption?
Spring Arbor has already dealt with this issue after keeping from the classroom a professor who transitioned while working for the school. There was an EEOC complaint that the university settled in 2007 (unclear what the settlement entailed).
Simpson is affiliated with the Christian and Missionary Alliance. The latter's website lists the school as one of six "education centers." I imagine the other schools will also be asking for exemptions.
The term affiliation needs to be clarified--what is the difference between affiliation and control?--as do the criteria for religious exemptions--or at least made more transparent.

George Fox University's Religious Exemption From Title IX Compliance

George Fox University is a Christian institution in Oregon that was founded on Quaker principles.  In April, it denied a transgender student named Jayce M. the right to live in on-campus housing consistent with his male gender identity, offering him instead the opportunity to live with other men in off-campus housing if certain conditions were met.  With the help of attorneys, Jayce filed a Title IX complaint with the Department of Education's Office for Civil Rights, arguing that the decision discriminated against him on the basis of gender identity.  The complaint seemed poised to allow OCR the opportunity to give effect to the broad, trans-inclusive definition of sex discrimination that it has lately been espousing, such most recently in its  guidance on sexual assault. But instead, OCR has granted a religious exemption to George Fox that has effectively immunized the institution from Jayce's Title IX challenge. 

What is the legal  basis for a religious exemption from Title IX?  The statute itself exempts "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."  20 U.S.C. 1681(a)(3).  This effectively creates two conditions: (1) that the school actually be controlled by a religious organization, i.e., not just a private school with a certain religious tradition; and (2) a showing that Title IX would apply in such a way that is inconsistent with the organization's religious tenets. Additionally, Title IX regulations require institutions 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.

Thus, the exemption is narrow in scope -- in that it only applies to the aspects of Title IX for which the institution can articulate a conflict with religious tenets -- and narrow in application -- in that it only applies to institutions that are run by churches, not just that happen to have a religious outlook or tradition. Both limitations are important to ensure that Title IX doesn't contain a giant loophole that offers any private school a justification for using federal money in the service of discrimination that would otherwise be prohibited by law.  Interestingly, when I looked up the business status for George Fox University, I learned that it is incorporated as "public benefit" non-profit corporation, and not a religious non-profit corporation (which is also a type of corporation that exists in Oregon).  In other words, I am having trouble confirming that George Fox University, despite its Quaker heritage, is actually controlled by a religious organization as the statute requires.  (In contrast, when I went onto Notre Dame's website, it took me two seconds to find the name of the religious organization that controls the school.)   It is also interesting to note, as this article does, that GFU applied for the religious exemption after Jayce had already applied to live in male housing.  One would think that if Title IX's application to transgender students conflicted with some fundamental tenet of Quakerism, the institution would have applied for the exemption in advance, in the manner contemplated by the regulations.  Applying for it in retrospect gives the appearance of a defensive move.

Just recently, the Supreme Court ended its Term with a decision that allows religious colleges to opt out of the requirements of the Affordable Care Act to make coverage for birth control available to employees and students. If this decision emboldens more religious institutions to claim exemptions from other laws as well, like Title IX, it will be increasingly important for OCR to carefully scrutinize all applications for religious exemption to ensure that both requirements -- the religious tenet conflict AND control by a religious entity -- are met. 

Supreme Court Endorses "Ministerial Exception"

On Wednesday the Supreme Court decided that that First Amendment protected a religiously-affiliated elementary school from having to defend claims that it fired a teacher for reasons that discrimination on the basis of her disability. The Court concluded that because the teacher's job included religious instruction, the school's right to religious freedom precluded the application of antidiscrimination law. This decision is reportedly the first time that the Supreme Court has affirmed the concept of a "ministerial exception" to employment discrimination laws, though lower courts have applied this concept in the past -- including in cases involving discrimination on the basis of sex.

No Retaliation Remedy for Parochial School Teacher

Aado Kommendant was a teacher and girls' softball coach at St. John Vianney High School in New Jersey until the school decided in 2004 not to renew his contract. The school claimed that Kommendant was fired for appropriating school property and misusing funds, but the coach believed he was fired in retaliation for filing a Title IX complaint the Office for Civil Rights about inequitable treatment of the softball team. He sued the Diocese of Trenton, which operates the school, claiming that the school's decision was wrongful discharge under New Jersey common law. An appellate court recently affirmed the lower court's decision to dismiss Kommedant' suit against the school and its officials.

Because St. John Vianney High School is a private school that does not receive federal funds, it is outside the scope of Title IX. Therefore, the court reasoned, Kommendant's complaint to OCR about inequitable treatment of the girls' softball team is not entitled to protection from retaliation under NJ law. This reasoning highlights an important distinction between federal retaliation law, including that of Title IX, and comparable doctrines under state law. Under Title IX, an employee is protected from retaliation if employee reasonably believed that he was complaining about a violation of law. Under state law, at least in New Jersey, the employee only gets protection for complaining about actual violations of law. Whether Kommendant reasonably believed Title IX applied to St. John's or not, he is not protected under state law for complaining about Title IX violations.

I think that protecting employee's reasonable belief, as Title IX does, is superior to the state's more rigid approach. Employees will rarely be certain that their complaint addresses actual violations of law, and will likely be deterred by the threat of retaliation against speaking out against perceived violations of law.

Decision is: Kommendant v. Diocese of Trenton, 2010 WL 1526262 (Apr. 13, 2o1o, N.J. Super. Ct. App. Div.)

Philly girls finally get championship

This story about girls' basketball in Philly really struck me. In the early 80s, a girls' basketball coach, Lurline Jones, said that girls should have a city championship like the boys who had been playing a city championship since 1938. (The championship was a match-up between the Catholic League and the Public League.) So Jones filed a Title IX lawsuit charging discrimination against the girls who wanted to play their own championship. The archdiocese of Philadelphia decided just to cancel the City Title championships rather than fighting the lawsuit or hosting a championship for the girls.

Let me reiterate--the archdiocese cancelled the boys' championships. But Jones got all the crap.

Even today as she is recognized for being an invaluable advocate for girls' basketball in the city, some still hold her at fault as evidenced by this "praise" from a fellow coach:

"Everybody was upset for a lot of years," said Greco, who had two stints as the head coach of the Central boys' team and recently completed his 11th season as the school's girls' coach. "Everyone pointed the finger at her. But, getting past that, what she did for girls' basketball in Philadelphia was remarkable. She deserves a lot of credit."

Getting past that? As if it's some black mark on her record that she fought for gender equity and came across the rather staunch patriarchy known as the Catholic Church.

Jones retired but this year the city finally reinstated the championship--for boys and girls. Only took 29 years!

Religious Employer Immune from Title IX Claim

A federal district court recently confirmed that religious educational institutions are exempt from Title IX when making employment decisions affecting clergy. The case involves the claims of a former nun, Lynette Petruska, who was demoted from her position as chaplain at Gannon University and forced to resign after she blew the whistle on a priest's affair. Title VII, the basis for her initial claim, was deemed inapplicable to Gannon by the Third Circuit Court of Appeals because of the ministerial exception to Title VII, which derives from the institution's First Amendment freedom of religion.

Petruska sought leave to amend her complaint to include a Title IX claim, since Title IX duplicates Title VII's protection of school employees from sex discrimination, but (as we predicted), the court held the ministerial exception to Title VII is equally applicable to Title IX. It doesn't matter which statute offers protection from discrimination, reasoned the court, because the exception "is rooted in a source of law higher than legislative enactments--namely, the First Amendment of the Constitution."

Citation: Petruska v. Gannon University, 2008 WL 2789260 (W.D. Pa. Mar 31, 2008).

Interview with Pat Griffin

Two of my favorite bloggers contributed to the current "Pride Month" issue of the Beacon Broadside. Helen Wheelock of Women's Hoops Blog interviewed Dr. Pat Griffin, of It Takes A Team about homophobia in sport. Griffin has recently been involved in some very interesting work on the role of religion in college sports, which can intersect with and contribute to discrimination against gay and lesbian student-athletes. I'm glad Wheelock asked her about it (among other things):

....What challenges do gay athletes face when sports and religion intersect? How can coaches, even coaches at schools with policies that forbid homosexual conduct, support their gay and lesbian athletes?

....Coaches have a responsibility to create and maintain a religion-neutral environment on their teams, but some coaches invite or pressure athletes to attend chapel or Bible studies, to pray together or listen to Biblical quotes as part of their coaching. I think this is wrong, not only because it places lesbian and gay athletes at risk, but it also alienates anyone on the team who does not share the coach's particular faith. College and high school sports are not church leagues.

I support every athlete's and coach's right to their personal religious or spiritual beliefs as well as their right to individually express that belief, but I think there is a little too much tolerance in athletics for mixing evangelical Christianity with athletics. I would hope that even in religious schools where homosexuality is specifically condemned that coaches and athletes would treat gay and lesbian teammates with respect.

On other topics with Title IX relevance, Griffin praised the NCAA for incorporating a more inclusive message into its athlete training workshops, and pointed out the particular vulnerability of female coaches to direct discrimination and tactics like negative recruiting.

Belmont Abbey College Faculty Challenge Exclusion of Contraception from the Health Care Policy

Update 2/25. We have heard that, contrary to the media report cited herein, the faculty and their counsel are not planning to challenge the college's contraception policy under Title IX. Rather, they have filed a complaint with the EEOC under Title VII, and they are challenging the school's policy under state law that requires insurers that offer prescription drug coverage to include coverage for contraceptives -- a law that, like Title IX, makes an exception for religious institutions.

Faculty at Belmont Abbey College, a Benedictine college in North Carolina, are considering whether to file a lawsuit to challenge the College's decision to exclude coverage for contraception from the health care plan offered to its faculty. They argue that the exclusion of contraception is sex discrimination in violation of Title IX.

Should the faculty file suit, their lawyers at the National Women's Law Center will have to contend with the religious exemption from Title IX, 20 U.S.C. § 1681(a)(3), which provides that the statute “shall not apply to an 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.” Belmont Abbey College, of course, insists that contraception is inconsistent with its religious tenants. But interestingly, according to NWLC, the College's articles of incorporation do not stress an overtly religious purpose. And what's more, the College has in the past successfully litigated its eligibility for state scholarship funding reserved for secular institutions. There are no judicial decisions interpreting Title IX's religious exemption, so it's unknown how much weight a court would give to evidence that seemingly contravenes the College's stated position on its religious tenets.

The contraception question itself is also interesting. The College could defend that the health care policy withholds contraception from both male and female faculty and thus is not discriminatory. (Of course, this argument would fail if the policy covered, say, vasectomies, but not birth control pills.) The Eighth Circuit recently endorsed this position in a case construing Title VII, the statute that prohibits discrimination on the basis of sex (among other characteristics) by private employers. Union Pacific, 479 F.3d 936 (8th Cir. 2007). The faculty would have to contend that lack of access to contraception disproportionately impacts women, or argue that access to contraception is required under Title IX's express prohibition of discrimination on the basis of pregnancy, or make the case that the health care policy's exclusion of contraception results in women receiving fewer health benefits on the whole.

California Judge Holds Christian High School Exempt from State Civil Rights Law

The principal of California Luthern High School did not violate civil rights of two female students when he expelled them on suspicion of their lesbian relationship, said a California judge earlier this week. Specifically, Judge Gloria Trask held that the state's Unruh Civil Rights Act, which governs private entities who are employers or provide public accommodations, does not cover private, religious schools.

According to this report in the North County Times, Judge Trask reasoned that the First Amendment protects a school's right to educate students on the basis of Christian beliefs and that their freedom of association trumps civil rights law. The paper also reports that the students' lawyer plans to argue on appeal that the Unruh Act applies because the school is in the business of providing education for a fee.

It will be interesting to see what happens to this case on appeal, especially if it the dispute really is about freedom of association. The conflict between a private organization's freedom of association and the public's interest in civil rights is controversial area of law. The Supreme Court has ruled that the Boy Scouts' associational right to promote among its members its beliefs about homosexuality trumps a scoutmaster's right not to be fired on the basis of his sexual orientation. But courts generally approach these conflicts in a very case-specific way, asking how strong is the particular associational interest in question and how intrusive it would be for the association to comply with the antidiscrimination law in question (the Second Circuit's decision in the Chi Iota case is illustrative). A private Christian school can likely make a persuasive case that it has a strong interest in promoting Christian values among its members. But it's not so clear that it is necessary to expel suspected lesbian students -- who, unlike a scoutmaster, are not in a "role model" position -- in order to promote that belief.

Former Nun Revives Discrimination Suit by Invoking Title IX

Earlier this year, Lynette Petruska lost her Title VII employment discrimination lawsuit against Gannon University, her former employer, when the Supreme Court declined to consider her appeal of a 3rd Circuit's ruling that a doctrine called the "ministerial exception" protected the University's right to make hiring decisions based on gender.

She is now trying again by raising claims under Title IX instead.

Petruska, a former nun, was demoted from her position as chaplain and forced to resign from the University "because of her gender and because she helped expose accusations of a cover-up over a priest who allegedly had an affair."

The First Amendment's Free Exercise clause protects individuals' and churches' freedom to practice religion. Courts have held that this clause protects churches in their capacity as employers. Courts will not examine a religious institution's motives when it comes to "selection of clergy–in other words, its choice as to who will perform particular spiritual function" (quoting the Third Circuit decision). Because constitutional rights trump statutory ones, this creates a "ministerial exception" to Title VII. In other words, as the Third Circuit concluded, even if Gannon University's decision to fire Petruska would have otherwise violated Title VII, because Gannon is the church and Petruska was a clergy (a chaplain), Petruska's statutory rights are not protected.

Unfortunately, I don't think that Petruska's new approach of suing Gannon under Title IX will make any difference to the outcome of her case. Courts generally construe Title IX's protection for employees as coextensive with the protection they receive under Title VII. Also, there is nothing in the Third Circuit's decision that suggests that its rationale was specific to Title VII and inapplicable to other statutory rights that might come into conflict with the Free Exercise Clause. ("The ministerial exception, as we conceive of it, operates to bar any claim, the resolution of which would limit a religious institution’s right to select who will perform particular spiritual function." (emphasis added))