What a Title IX Proposal Means for Religious Liberty

Alexandra McPhee is Director of Religious Freedom Advocacy at Family Research Council. This article appeared in Real Clear Education on February 8, 2019.

Faith-based educational institutions might see a welcome change in federal regulations on the horizon.

This week, the U.S. Department of Education concluded its public comment period for a proposed rule that would make several changes to federal regulations regarding the law known as Title IX, which prohibits sex-based exclusion from, denial of benefits by, or discrimination by any education program or activity receiving public assistance. As Family Research Council argues in its formal comment supporting the proposed rule, at least one recommended change means good things for faith-based universities’ religious freedom rights.

Title IX not only prohibits sex-based discrimination, it also protects religious educational institutions from government infringement on their faith-based policies. When Title IX’s terms are not consistent with an institution’s religious tenets, such as those involving marriage and related sexuality issues, the institution has the right to implement policies that put its tenets into practice without facing a loss of federal funding.

The statute’s religious freedom protection should have been straightforward. But a federal regulation implementing this law has generated much confusion and complicates the ability of faith-based institutions to invoke their religious liberty protections.

Largely hidden from the public eye in the quiet recesses of page 30958 of volume 45 of the Federal Register, the regulation says that an:

“educational institution which wishes to claim the exemption . . . shall do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions . . . which conflict with a specific tenet of the religious organization.”

Words like “claim” and “shall” impose requirements that the law does not demand. And requiring “in writing” a request for an exemption goes beyond the law. Yet, over the years, many institutions have submitted the written statements out of an abundance of caution. Submissions surged in 2015 after the Obama administration announced that it would interpret the word “sex” to include gender identity and thus consider gender identity a protected category under Title IX. (In 2017, the Trump administration rescinded this guidance.)

With its latest regulatory proposal, the department is attempting to clarify that exempted institutions should not suffer this unnecessary administrative hurdle that finds no basis in the law. The proposal dovetails with the robust protections for religious freedom that have been expressed by Congress and the U.S. Supreme Court.

In addition to the Title IX exemption, Congress enacted the Religious Freedom Restoration Act “in order to provide very broad protection for religious liberty.” The RFRA states that the government may not “substantially burden” the free exercise of religion absent a “compelling governmental interest” furthered by “the least restrictive means.”

This robust protection of religious freedom is also consistent with Supreme Court rulings. In Burwell v. Hobby Lobby Stores, Inc. (2014), the court concluded that the RFRA precluded the application of a federal regulation to closely held, for-profit entities. Several businesses did not want to be forced to provide abortifacients to their employees under the regulation, a decision that would have cost the businesses up to $26 million in penalties. The court agreed that the regulation would have constituted a substantial burden on the businesses’ sincerely held religious beliefs and said that the RFRA protected them. And in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), while acknowledging that society’s interest in antidiscrimination laws, particularly in matters of employment, “is undoubtedly important,” the court concluded that forcing a religious school to retain a teacher responsible for guiding students’ spiritual development just to abide by such a law “infringe[d] the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”

The existing regulation governing Title IX undermines the robust view of religious freedom so expressed by Congress and the Supreme Court. It essentially (and unnecessarily) requires institutions to seek the government’s permission before putting religious tenets into practice. This extra layer of administrative oversight should not be dismissed as inconsequential when we consider the larger discussion of how much power the government ought to wield — and the detriment it can have on religious freedom rights — in the regulation of religious institutions.

It also contradicts the department’s Office for Civil Rights’ current policy, which says that “[a]n institution’s exempt status is not dependent upon its submission of a written statement to [the office].” For this reason, the department should be applauded for its effort to eliminate any unnecessary hurdles to invoking the religious freedom protection under Title IX.

There is still room for improvement for the religious liberty of educational institutions. The wording under Title IX’s exemption may still leave vulnerable faith-based institutions not “controlled by a religious organization.” While this can only be amended by law, changing the current regulatory regime, which has no parallel in the regulations for any other exemption, is a step in the right direction.