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A group of current and former LGBTQ students at religious colleges and universities has filed a class-action lawsuit that, if successful, could force many Christian schools to close their doors.
The plaintiffs are asking the U.S. District Court in Eugene, Oregon, to declare that the long-standing religious exemption to the Title IX federal civil rights law is unconstitutional. Title IX prohibits discrimination based on sex in any education programs that receive federal assistance. But the law includes an exemption for educational institutions controlled by a religious organization, if application of the law would not be consistent with the institution’s religious tenets. If religious schools could no longer receive exemptions, students would be unable to use federal financial aid to attend those schools.
“If the plaintiffs were to prevail in this lawsuit, the results could be catastrophic for religious schools, and also for the students who want to attend them,” said Mark Lippelmann, senior counsel for Alliance Defending Freedom (ADF). “If the plaintiffs had their way, no student would be able to use their federal grant or loan assistance at a school that teaches widespread Christian doctrines on gender and sexual morality.” The resulting reduction of enrollment at religious schools, Lippelmann added, could threaten their very existence.
The lawsuit names the U.S. Department of Education (DOE) as the sole defendant in the case, although it mentions 29 religious higher education institutions and claims that the LGBTQ students have felt anxiety, depression and fear while attending those schools. Some students have been expelled, and others fear expulsion, because they are in violation of their school’s policies forbidding homosexual activity or gender transitions.
Believing that the Department of Education under the Biden administration would not be inclined to deliver an adequate defense, and arguing that the suit improperly names the DOE as the defendant, the Council for Christian Colleges & Universities (CCCU) has filed a motion to intervene and be heard in the case, as has ADF, which is representing three Christian schools: Corban University, William Jessup University and Phoenix Seminary.
On June 8, the Department of Justice (DOJ) responded to the court on behalf of the Department of Education, arguing that CCCU and ADF should not be allowed to intervene and stating that the federal government would adequately defend the interests of religious schools.
LGBTQ activists said they felt betrayed by the government’s intent to defend religious exemptions, and the following day, the DOJ amended its response, pointing out that the Department of Education is reviewing Title IX but saying it is premature to assume that the DOJ will not adequately defend the religious schools’ interests.
Lippelmann remarked, “The fact that the government caved to political pressure in less than 24 hours only confirms that religious schools need to participate directly in this case.”
Both CCCU and ADF also filed proposed motions to dismiss the lawsuit, so if the court ultimately allows them to intervene in spite of the government’s objections, those motions to dismiss will be the next step for the court to consider. And the arguments for dismissing the suit are strong.
CCCU would ask that the suit be dismissed because of frivolous legal claims—a legal term that characterizes insufficient legal arguments, CCCU President Shirley Hoogstra explained. “We’re not saying that the challenges or problems faced by LGBTQ communities are frivolous,” she said. “What we’re saying is that the legal claims that they put in have already been decided by court cases that have preceded this case.”
Hoogstra likened the case to a church member having a complaint about their pastor and taking that complaint to city hall—it’s simply the wrong forum for such a complaint.
“The department did not create the religious exemption,” she said. “Rather, the department implements what Congress passed and what is required by the First Amendment to the Constitution. The Department of Education does not control the policies of schools and does not have the power or authority to change them.”
ADF’s proposed motion to dismiss argues that the court itself lacks the jurisdiction to decide the case; that the students’ alleged injuries focus on negative feelings, not the kind of concrete injuries that can be acted upon by the courts; that the Department of Education had no direct connection to those alleged injuries; and that, in summary, the relief that the plaintiffs are requesting is “incoherent and practically impossible.”
But if the lawsuit is so weak, why even bring it?
“The frivolous nature of the lawsuit may just be a long-game strategy,” said Todd Chasteen, vice president of public policy and general counsel for Samaritan’s Purse. “The lawsuit itself can be a tool to generate a narrative that Christian colleges are unkind, bigoted and discriminate against a minority LGBTQ community. Activism sometimes takes the long view, paints a narrative, unleashes talking points to allies, fosters cultural change, gains dominance and then triggers a movement into law and policy.”
Indeed, the students’ lawyer, Paul Carlos Southwick, signaled a long-game strategy when he told the Washington Post that the lawsuit is designed to send a message to Congress: Don’t allow religious organizations to carve out any exemptions to the Equality Act, which is awaiting action in the U.S. Senate after being passed by the House of Representatives.
But regardless of the plaintiffs’ long-term goals, supporters of religious schools say the verdict should be obvious in this case.
“Students shouldn’t be punished just because they want to attend a school teaching widely held religious beliefs,” said ADF’s Lippelmann. “The breadth of what the plaintiffs are asking for is staggering: a nationwide injunction that would eliminate religious protections for people of all faiths. And the government shouldn’t tell religious schools: ‘You have a choice. Either abandon your religious beliefs or suffer a devastating reduction in enrollment that could shut your doors for good.’”
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