Baylor's Title IX Exemption
A deep dive into Department of Education policy
In Friday’s newsletter about Southwest Airlines and religious freedom, I made a passing reference to the news of Baylor University being granted a religious exemption on Title IX policy. As I explained in a footnote, I didn’t go deeper into the topic because we had tickets to see Barbie.1
I had a great online chat with Baylor History professor Elisha Coffman over the weekend. It gave me some additional handles beyond the outrageous claims in the media.2 So I’ve tried to do a deep dive on Biden’s executive order, the changes to Title IX rules, the letter from Baylor to the Office of Civil Rights (hereafter OCR) and the OCR’s response to Baylor. Needless to say, I got pretty deep in the weeds.
First, some context. Going back to 1972, Title IX of the Higher Ed Authorization Act bans discrimination in higher education on the basis of are variety of classifications for any institution of higher education that receives federal funds. This was the basis for the IRS actions taken against Bob Jones University during the Carter Administration. Title IX has also been significant over issues of equity in intercollegiate athletics.
Some Title IX focus has been on sexual harassment on college campuses. The Obama Administration (with some significant advocacy from then-VP Biden) took a pretty strong stance to address the processes through which sexual harassment could be adjudication. In the Trump Administration, Secretary Betsy DeVos, shifted those processes. It was natural that the Biden administration would make some shifts back the other direction.
Religious institutions have been allowed to be exempt from some general provisions of Title IX if its requirements forced them to act in contradiction to their religious priors or denominational allegiances. The OCR response to Baylor states this provision clearly:
Title IX and its implementing regulations at 34 C.F.R. § 106.12 provide that Title IX does not apply to an educational institution controlled by a religious organization to the extent that the application of Title IX would be inconsistent with the controlling organization’s religious tenets. Section 106.12(b) of the Department’s Title IX regulations describe the process by which an educational institution may request assurance of a religious exemption or assert a religious exemption in response to a pending OCR investigation. The request must identify the religious organization that controls the educational institution and specify the tenets of that organization and the provisions of the law or regulation that conflict with those tenets. Section 106.12(c) of the Department’s Title IX regulations describes the evidence that is sufficient to establish that an educational institution is controlled by a religious organization.
This is not new. The question becomes, why did Baylor need to make its recent request for a religious exemption? As the Baylor letter indicates, they have had religious exemptions on file since 1976 (as had many other religious institutions of higher ed).
I’ve suggested in other posts that the 2020 Bostock decision was going to have significant effects. That’s behind the current discussion. In that case, Associate Justice Gorsuch wrote that discrimination against LGBTQIA+ individuals was, by definition, sex discrimination and prohibited by a number of Civil Rights statutes.3
In March of 2021, President Biden issued Executive Order 140214 instructing the Secretary of Education to implement a review of current rules addressing sex discrimination, “including sexual orientation or gender identity”.
This past June, the DOE announced that they had completed their revised rules. The summary sheet clearly identifies Bostock as a driver in their deliberations. The new rules will
..require that all students receive appropriate supports in accessing all aspects of education. They will strengthen protections for LGBTQI+ students who face discrimination based on sexual orientation or gender identity. And they will require that school procedures for complaints of sex discrimination, including sexual violence and other sex-based harassment, are fair to all involved. The proposed regulations also reaffirm the Department's core commitment to fundamental fairness for all parties, respect for freedom of speech and academic freedom, respect for complainants' autonomy, and clear legal obligations that enable robust enforcement of Title IX.
I tried to work my way through the actual draft rules, but it’s over 700 pages long. I paid attention at the beginning and then searched for any major shifts in addition to big change post-Bostock. One I found was that where the rules previously drew attention to “serious, persistent, or pervasive” will now say “serious or pervasive”. Theoretically, this will make complaints easier to file without waiting for the evidence of an ongoing practice.
The student newspaper, the Baylor Lariat, explained that one driving factor in Baylor’s letter this year was a series of complaints filed with OCR by former (and perhaps current) LGBTQ students.
[Baylor president] Livingstone sent a letter to the Office for Civil Rights in May, arguing that complaints about Baylor not responding to harassment claims from LGBTQ+ students should not have standing because of the university’s religious beliefs. According to the letter, such complaints include the university’s alleged decision to not officially charter Gamma Alpha Upsilon, its alleged response to a notification that students were subjected to harassment based on sexual orientation or gender identity, and its alleged decision to pressure university media not to report on LGBTQ+ protests and events in 2021.
Back in 2021, a group of students from religious institutions sued the Department of Education over the practice of granting religious exemptions. The Religious Exemption Accountability Project (REAP) had filed a class action suit representing 40 LGBTQ students.5 Former students from Baylor were in the class. A federal judge dismissed the case back in January, rejecting the core REAP arguments. This is likely not the end of the story for the DOE or the impacted institutions.
The Baylor letter to the OCR includes this paragraph:
The University does not discriminate on the basis of sexual orientation or gender expression per se, but it does regulate conduct that is inconsistent with the religious values and beliefs that are integral to its Christian faith and mission. Since Baylor "affirms the biblical understanding of sexuality as a gift from God" and requires "purity in singleness and fidelity in marriage between a man and a woman as the biblical norm," any asserted Title IX requirement that Baylor must allow sexual behavior outside of marital union between a man and a woman, or that contradicts the Baptist doctrine of marriage and the created distinction between men and women, is inconsistent with Baylor's religious tenets, and the University is exempt from such requirement.
In my judgment, that per se is doing a lot of work. Baylor’s positions on marriage and premarital sex are fairly common for religious institutions I’ve known. These positions are defined in student behavioral agreements. As such, they can apply to all students regardless of sexual orientation or gender identity.
Note that Baylor makes reference to discrimination and not harassment. The OCR’s response grants the broad religious exemptions but leaves open the question of what happens when there are complaints of harassment.
Please note that this letter should not be construed to grant exemption from the requirements of Title IX and the regulations other than as stated above. In the event that OCR receives a complaint against your institution, we are obligated to determine initially whether the allegations fall within the exemption here recognized.
A statement released from the Baylor president’s office claims that harassment is still a matter of great concern to Baylor, outrageous media headlines notwithstanding.
There will be NO CHANGES to Baylor’s current practices or policies related to sexual harassment and other forms of sexual and interpersonal conduct resulting from this assertion of our existing religious exemptions. Our Office of Equity, Civil Rights, and Title IX will continue to investigate sexual harassment allegations or related complaints and investigate these thoroughly and fairly. We have taken and will continue to take meaningful steps to ensure all students – including members of the LGBTQ community – are loved, cared for and protected as a part of the Baylor Family.
A final note about requests for religious exemptions. As REAP argues, these exemptions are pretty easy to obtain. Back in the Obama administration, a host of schools filed for and received similar exemption letters. They simply stated their religious positions, sometimes with reference to the views of the sponsoring denomination, and the exemption was granted (although harassment was still something that would bring DOE attention).
For years, I have heard Christian university administrators6 raise concerns that “If the Democrats get in control we’ll lose our federal financial aid because they’ll make us affirm gay students.” So what happens when Democrats do win the election and make the DOE rules? They grant exemptions to religious institutions.
It makes me think that some of the Culture War arguments aren’t completely sincere.
Loved the movie. “When I found out that the patriarchy wasn’t about horses, I kind of lost interest”: the Ryan Gosling Ken.
For example, Mother Jones had a headline of “Baylor University Is No Longer Required to Protect Queer Students From Sexual Harassment”
It was based on Title VII of the 1964 Civil Rights Act.
Executive Orders are in force during a presidential administration and can be changed by subsequent administrations (which is what happened with Obama rules).
I thought the REAP suit was an interesting approach even though it would be hard to prove standing against the DOE as opposed to the individual schools. They will no doubt continue their efforts, although recent decision of the Supreme Court (e.g., 303 Creative) make that an uphill climb.
When one college president made this argument to me, I asked him “Have you met our congressman?” We would have been the subject of a floor speech the first day action was taken and on Fox News the next.
Great read! Excellent breakdown of this in a very understandable way. (My wife and I also saw Barbie this weekend. Loved it as well, and that quote was one of the best lines in the movie! :-)