A panel of the U.S. Court of Appeals for the 9th Circuit has ruled that Christian colleges and universities need not adhere to non-discrimination laws that go against their deeply held beliefs in order to be granted federal aid for students.
The ruling stems from a lawsuit brought by 40 LGBT students against the U.S. Department of Education. The suit challenged the religious exemptions to Title IX enforcement allowed at three Christian schools: Corban University, William Jessup University and Phoenix Seminary. The suit was filed after the Department of Education clarified in August 2020 that universities and colleges don’t have to submit written statements before bringing a religious exemption.
In the case, known as Hunter v. U.S. Department of Education, students claimed that Title IX’s ban on discrimination on the basis of sex includes sexual orientation and gender identity, and that granting religious colleges, which voluntarily take federal funding, an exemption to the ban violates the Constitution.
The case came about shortly after the Biden-Harris administration rewrote Title IX to include the term gender identity, allowing for biological men to enter private women’s spaces. After religious colleges publicly opposed the new rule, the Religious Exemption Accountability Project (REAP)—an LGBT activist group—filed a lawsuit “to prevent any students from using tuition grants, student loans, and any other federal financial assistance at schools that operate according to religious beliefs on sexuality.”
In its Aug. 30 ruling, the panel of three judges compared the benefit of Title IX funding to having tax-exempt status.
“Just as a school is not required to accept federal funding, a religious institution is not required to own property,” the panel said. “Even so, religious institutions are constitutionally exempted from paying property taxes. Both the statutory exemption to title IX and property tax exemptions operate as a financial benefit to non-secular entities that similarly situated secular entities do not have.”
The panel concluded: “Absent additional historical evidence—and Plaintiffs point us to none here—the history of tax exemptions near the time of the Founding suggests that the statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning.”
Chris Schandevil, senior counsel for Alliance Defending Freedom, which represented the colleges, applauded the decision.
“Federal law explicitly protects the freedom of religious schools to live out their deeply held convictions, and we’re pleased this legal victory protects Christian colleges’ fundamental rights,” Schandevel said. “A group of activists asked the court to strip that protection away from schools that educate the next generation and advance the common good. And the 9th Circuit correctly held that the religious-liberty exemption in Title IX, which applies to schools receiving federal financial assistance, is consistent with the Constitution.”
Arielle Del Turco, Family Research Council’s director of the Center for Religious Liberty, told The Washington Stand that the 9th Circuit made “exactly the right decision.”
The decision “affirms that religious educational institutions [can] receive an exemption from Title IX when its application would not be consistent with the sincerely held religious beliefs of institution,” Del turco said. In addition, “Students using their federal aid at colleges and universities that share their religious beliefs is not a violation of the First Amendment, as the court made clear.”
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