Policy-makers should promote genuine pluralism within American higher education rather than using heavy-handed regulations to impose uniformity.
Policy-makers should promote genuine pluralism within American higher education rather than using heavy-handed regulations to impose uniformity.
T he federal Title IX religious exemption is good policy and a necessary protection for religious universities that seek to remain faithful to their religious mission. Unfortunately, some in Congress don’t see it that way.
In a September 5 letter to the U.S. Department of Education, five members of Congress led by Representative Adam Schiff (along with Representatives Greg Casar, Joaquin Castro, Mark Takano, and Veronica Escobar) objected to “Baylor University’s claim to an exemption from Title IX’s regulations prohibiting sexual harassment . . .” and urged “the Department to clarify the narrow scope of this exemption.” Title IX prohibits discrimination based on sex in education programs that receive federal financial assistance.
In addition to calling for greater scrutiny of the scope of Baylor’s religious exemption, they also challenged the school’s fundamental eligibility for a Title IX exemption in light of allegations that “[Baylor] is no longer controlled by a religious organization.” The ideology driving this inquiry threatens Baylor’s religious freedom and that of many other religious institutions in America.
On May 1, Baylor sent a letter, consistent with federal regulations, to Catherine Lhamon, the Education Department’s assistant secretary for civil rights, to claim a religious exemption in response to a pending Office for Civil Rights (OCR) investigation. Baylor’s letter acknowledged several OCR complaints filed by students in 2021 against the university and insisted that they “must be dismissed because the allegations directly implicate Baylor’s religious exemption from Title IX.” In July, OCR affirmed that Baylor continues to be an appropriate recipient of the exemption.
The OCR complaints were filed by a group of students who identify as LGBTQ. In response, Baylor’s letter makes clear that the university does not in any way seek permission to engage in or allow sexual harassment against anyone on its campus, which Baylor’s president underscored in a subsequent statement in August. The letter also offered a key point of clarification that is too often missed or misunderstood: “The University does not discriminate on the basis of sexual orientation or gender identity or 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.” Until this statement by Baylor, and ones similar, receive a fair hearing, the ongoing controversies between religious freedom and “sexual orientation and gender identity” policies will remain at a fever pitch in American law and culture.
Here’s what we mean. Baylor upholds views on sex, marriage, and the nature of male and female based on deeply held religious convictions about God and the reality of human nature. With equal conviction, “Baylor supports the dignity and worth of every person and seeks to create a campus climate where each person is treated with love and respect.” Some people root part of their identity in views incompatible with Baylor’s, but that does not give them the moral or legal right to impose those views on Baylor. Affirming equal human dignity, which Baylor does, is not the same thing as equal regard for all modes of sexual conduct or gender expression, which Baylor rejects.
Civil-rights law includes protected classes such as race, sex, religion, and national origin, among others. Congress did not, however, legislate these protections to advance particular views on sex, marriage, and the nature of male and female while punishing dissenters. Those who want to use government power to intervene in these critical matters should put forth transparent policies that deal with them directly, instead of slyly trying to achieve their goals indirectly, and even surreptitiously, under the potent banner of equality. Unfortunately, sexual-orientation and gender-identity nondiscrimination rules often end up being used in just this way.
This case raises important questions at the intersection of identity and law. But there is more at stake here than the identities of those who understand themselves to be LGBTQ. The religious identity of institutions is also at play. Congressman Schiff and his colleagues indulge the notion that Baylor is “no longer controlled by a religious organization” and thus may not be allowed to “avail itself of religious-based exemptions from Title IX.” In its letter to Lhamon, Baylor names the religious bodies to which it is faithfully committed, including affiliation with the Baptist General Convention of Texas, membership in the Baptist World Alliance, and adherence to a “predominantly Baptist Board of Regents.” It is extremely difficult in good faith to dispute Baylor’s eligibility for a Title IX exemption on this ground.
It must also be said that religious universities should be able to demonstrate in their religious mission and organizational practices their eligibility for a Title IX exemption without having to prove “control by a religious organization.” The legal requirement that they must demonstrate such control is flawed and introduces an entirely unnecessary point of legal vulnerability for Christian, Jewish, Muslim, and other religious universities. That section of Title IX and its implementing regulation should be reformed.
While showing genuine respect across differences must be a commitment we all make in our pluralistic society, people should not be able to use their identity to impose moral demands on the religious institutions they voluntarily enter into. And yet, that is precisely what Congressman Schiff and his colleagues are demanding on behalf of dissenting students.
Like so many American elites, these congressional representatives are so preoccupied with ensuring diversity within institutions that they fail to see the immense value in safeguarding diversity among institutions. Policy-makers should promote genuine pluralism within American higher education rather than using heavy-handed regulations to impose uniformity in this vital sector. In numerous ways, as one of us argued recently, our highly diverse society needs a diverse array of colleges and universities.
The mission of Baylor University is “to educate men and women for worldwide leadership and service by integrating academic excellence and Christian commitment within a caring community.” In a world increasingly awash with identity claims, Baylor’s identity matters, too.
Richard W. Garnett is a professor of law at the University of Notre Dame. Nathan A. Berkeley is communications director at the Religious Freedom Institute.