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Some colleges have a license to discriminate against LGBTQ+ students. Yes, really.

Updated: Nov 22

Trigger warning: This article contains references to discrimination, victimization, sexual harassment, and sexual assault on college campuses.



A formal loophole may exempt a religious college from Title IX, the federal law that protects LGBTQ+ students (and others “on the basis of sex”) from discrimination and harassment at educational programs that receive federal funds. But few people know about Title IX exemptions, including the people they affect most urgently.


The most common questions I get about Title IX exemptions are:

  • This sounds fake – is it fake? (It’s not.)

  • Who would want to claim an exemption from antidiscrimination law?

  • Why would a college want this? What do they want to do with it?


The questions are valid, both literally and rhetorically. Let’s start at the beginning.




Danger!!


Title IX exemptions allow religious colleges to permit the discrimination, victimization, and harassment of LGBTQ+ students.


A college that receives assurance of a Title IX exemption may be able to impose different rules on LGBTQ+ students, prevent them from creating affirming spaces, expose them to hateful teachings that devalue their existence, require them to attend specific evangelical churches and show proof of attendance, remove them from positions and part-time jobs on campus, force them into counseling and programming akin to conversion therapy, require them to pay fines, revoke their scholarships, and expel them. The college may not be bound by Title IX’s requirement to prevent hostile environments for students with diverse genders and sexualities, and if those students experience sex-based discrimination or harassment on campus, the college may not respond.


(The stories linked are shared by some of the brave students who agreed to serve as plaintiffs in the REAP lawsuit against a group of Title IX-exempt schools. The lawsuit is in progress.)


Students suffering from mental and emotional distress due to the above experiences may not have access to affirming counseling services on campus.


If my teen doesn’t identify as LGBTQ+, what do Title IX exemptions have to do with my family?


In a way, every U.S. taxpayer engages with Title IX-exempt colleges, as these institutions receive federal dollars despite having a license to discriminate against their students.


Furthermore, even heterosexual, cisgender students may find themselves concerned about living and studying in a community with a culture that tolerates discrimination and victimization.





Why would an LGBTQ+ student attend one of these schools?


There are plenty of reasons:


  • Most people just don’t know about Title IX exemptions. Traumatized students do not all share their stories openly or even privately. Beyond that, Title IX is a legitimately complicated topic, and Title IX exemptions are obscure.

  • Students of faith (who can also be LGBTQ+) may not equate evangelism with danger.

  • Unsupportive parents may encourage students to attend unaffirming institutions.

  • LGBTQ+ students may receive attractive scholarship offers (a type of marketing) at these schools

  • Students’ family cultures and contexts may push them to attend an institution that is close to home, regardless of other factors.

  • Many LGBTQ+ students do not come out until college and may not yet fully realize their identity when they create their college lists in high school.


Beyond this, high school students struggle with a complicated, burdensome college process, and they do not always find or commit the time for a thorough college search. For LGBTQ+ students who know they have unique considerations in the college search, there are not many resources available that are specific to their college search.


Worst of all, Title IX-exempt colleges may market directly to the LGBTQ+ students they intend to harm. These institutions attend college fairs, and they have lines ready about how Christians accept everyone. (School counselors, please consider disinviting these schools from your college fairs.)




Okay, slow-talk the exemptions to me.


In Title IX’s language, religious colleges “controlled by a religious organization” are exempt from provisions of Title IX to the extent that applying them would “not be consistent with the religious tenets” of that organization.


These colleges can elect to go through the formal process where they send a letter to the Department of Education’s Office for Civil Rights (OCR), which will respond to affirm the exemption or request more information.


The request letter must:

  • Identify the religious organization that controls the college

  • Include a statement of tenets or statement of practices showing the religious doctrine of the organization

  • Specify Title IX provisions (e.g. rules of organizations, housing, admission) for exemption

  • Connect those provision to the religious tenets, showing the tenets prevent the college from applying the provisions


The response letter repeats the information provided back for clarity and gives the office’s determination.


To date, OCR has never denied a religious college a Title IX exemption – at least, not to public knowledge.


Importantly, no college has a blanket exemption to Title IX law. (Thus, they will still have Title IX officers and procedures on those campuses.) They are only exempt from the provisions when they can demonstrate that applying them would, in the context of a hypothetical complaint, conflict with their religious tenets.




After an incident of discrimination or harassment at an exempt college, what happens next?


If students are unsatisfied with their school’s response to an incident, they can file a Title IX complaint against the school itself, which goes to their state’s OCR office to determine if they’ll take it up as an investigation.


When OCR reviews a Title IX complaint, they will consider whether that complaint falls under the Title IX exemption. According to the OCR Case Processing Manual (“Determine Personal Jurisdiction” Section 105) they will not take up an investigation if the college’s requested exemption covers the relevant provision, regardless of the specifics of the complaint.


The reality is that OCR is not likely to review the complaints at all, as the mere existence of the exemption (which will probably be a surprise to the victimized student at the time of the incident) would deter them from filing one, given the emotional burden of the formal Title IX complaint process and the unlikelihood of it going anywhere.





What schools qualify for a Title IX exemption?


Religious colleges controlled by religious organizations may be exempt from Title IX.


The criteria for a school to be controlled by a religious organization are broad, including requiring its members to practice the religion, having a published religious mission or doctrinal statement, or being a school of divinity (DOE Title IX Exemptions). Only one of the criteria needs to apply. If you’re hearing “controlled by a religious organization” and thinking that should rule out a great number of schools with independent boards of trustees, who may be religious but are not themselves religious organizations, that’s an entirely valid point, but DOE has affirmed exemptions for those schools for decades and the argument has not yet held up in court (Maxon v. Fuller Theological Seminary 2020).



Are religious schools safe if they have never requested an exemption?


A very important distinction to know: Under current Title IX guidance, any school controlled by a religious organization that becomes the subject of a complaint or investigation can assert a Title IX exemption to sidestep that complaint or investigation, regardless of whether they went through the formal process with OCR.


It’s a good sign if a college has not requested a Title IX exemption. However, a last-minute claim of a Title IX exemption could still shield any religious college from responsibility for discrimination and harassment that occurs on their campus. Therefore, students searching for faith-based colleges should look closely at the climate and culture of those schools, and they should hear stories from current LGBTQ+ students on those campuses to make sure those environments are free from danger and discrimination.


The fact that all religious colleges can claim a Title IX exemption should frustrate the religious colleges that are safe and affirming, which get lumped in with the dangerous colleges.





How can I find out which schools have requested or received Title IX exemptions?


The Department of Education publishes all correspondence sent and received in the OCR Reading Room under “Correspondence – Other.”


The first page of correspondence (2017-present) covers the most recent exemption requests, many of them supplementing former exemption requests (e.g. to discriminate against women, pregnant individuals, or unmarried sexually active individuals) with new exemptions to discriminate against LGBTQ+ students after Obama released his 2016 ”Dear Colleague” letter providing guidance on transgender students.


At the bottom of the Reading Room page are two older pages, one for the period 2009-2016 and the other the archives, for the period 1972-2008. Since OCR clarified and began enforcing Title IX transgender student protections in school in 2013 (Student v. Arcadia Unified School District 2013), many of the 2008-2016 exemptions mention gender identity. The archives before 2008 mostly do not include sexuality and gender identity, but they are a good place to see which schools have asserted some exemption in the past (the exemptions don’t expire).

What are some notable Title IX-exempt schools?


Here are some examples of schools and issues to watch for:

  • Baylor University attempted to sidestep three Title IX investigations in its July 2023 exemption, historic for its formal exemption specifically to the sexual harassment provision of Title IX (Baylor University Religious Exemption Request 2023).

  • Brigham Young University held the very first Title IX exemption and has a long history of creating hostile environments for LGBTQ+ students. The school removed (and then added again) a ban on “homosexual behavior” from its honor code, but Elder Paul V. Johnson, Church Educational System Commissioner, penned a letter to students, faculty, and staff (BYU Title IX Exemption Request 2021, page 5, “exhibit one”) clarifying that, regardless of the confusion around the handbook, “same-sex romantic behavior” is an honor code violation.

  • Westmont College in Santa Barbara, CA says they do not have a Title IX exemption, and this is true, but they gave themselves away in a 2017 letter to the California Student Aid Commission where Westmont’s president says, “still, we respectfully assert our exemption from Title IX,” which includes policies around “Unlawful Discrimination, Unlawful Harassment, and Sexual Assault” (EHEA Exemption Letters, page 25).




What is the current news and guidance around Title IX exemptions?


This section will be kept updated as major news and guidance is released.

  • Baylor’s historic exemption to the sexual harassment provision opened the door for other schools to request a similar exemption (to be watched closely). Adam Schiff and other legislators sent an official letter to the Department of Education calling on them to investigate Baylor and consider potential ramifications around the sexual harassment of LGBTQ+ students on college campuses.

  • The Religious Exemption Accountability Project (REAP) is currently leading a class action lawsuit against a number of Title IX-exempt colleges. Learn about their lawsuit here and read the stories of the plaintiffs here.



What can counselors and other allies do to help?


Advocates, there is action you can take:

  • Be ready to teach others about the exemptions. Even people well outside these colleges’ orbits may be in a position in their communities, one day, to interact with them.

  • Do not allow colleges with affirmed exemptions to promote their campuses or market their scholarships to students in your school or community, especially to LGBTQ+ students.

  • Title IX-exempt colleges often recruit locally. If you live nearby, educating your local community about a specific college can make a big impact.

  • Write to your congressional representatives requesting a review of Title IX exemption procedure (i.e. not requiring colleges to go through the formal process to claim exemption, and the interpretation of “religious organizations” to include independent boards) and to your state representatives to ask them to create protections for students, disincentives for colleges, and transparency around exemptions (e.g. California’s broad antidiscrimination law Equity in Higher Education Act and the Chapter 888 addition to it, which, granted, was defanged a great deal before it passed). You can also write directly to the U.S. Department of Education, which releases the guidance around Title IX and individually affirms exemption requests.


School counselors, nonprofit leaders, and parent groups can contact IECs for Human Rights to request a no-cost presentation about Title IX exemptions for a concerned group in your community.




Quick Resources




In Conclusion


Title IX exemptions are inherently dangerous for LGBTQ+ students, who may attend Title IX-exempt schools for a variety of reasons, not understanding the complex legal loophole that could allow a college to neglect to prevent hostile environments, ignore certain Title IX complaints on campus, and sidestep a Title IX investigation into the college itself.


Title IX exemptions are especially dangerous because of the lack of awareness around them. During the college search, LGBTQ+ students considering Title IX-exempt colleges may not fully recognize the potential for fear and harm on those campuses. They may assume any college at their school's college fair would treat them with dignity and keep them safe from harm.


Title IX exemptions pose an ethical dilemma for school counselors, independent counselors, and counseling associations, who aim to introduce students to all types of colleges but also have an obligation to educate families about the potential for harm at Title IX-exempt schools. Although this is a large task, our first responsibility should always be to protect our students from harm.


While Title IX exemptions are certainly a legal and ethical topic, they are foremost an education topic. It should be completely non-controversial that students searching for colleges should have access to information around Title IX exemptions and the schools that claim them, including at the college fairs where those colleges are present.


I encourage you, reader, to help bring Title IX exemptions out into the light so that our LGBTQ+ students are not in the dark about the danger they may be stepping into.


IECs for Human Rights, Erin Reed, and Shiwali Patel from the National Women's Law Center share about Title IX at the NACAC Conference in Baltimore 2023.
Robert Powers and Carolyn Caplan (IECs for Human Rights), Erin Reed (Erin in the Morning), and Shiwali Patel (National Women's Law Center) share about anti-LGBTQ+ legislation at the 2023 NACAC Conference in Baltimore.


Want to keep up with a group of college counselors advocating for the rights of LGBTQ+ students, including those harmed by Title IX-exempt religious colleges? Follow us at IECs for Human Rights on LinkedIn.



 

Robert Powers (he/him) is the founder of College Torch and a college consultant who specializes in helping LGBTQ+ students discover and apply to safe, happy, supportive colleges. If you're the parent of an LGBTQ+ teen or college student, you can join College Torch's Parents of LGBTQ+ College-Bound Students community on Facebook.


You can also find Robert on LinkedIn.


Robert loves researching and discussing Title IX and Title IX exemptions, but he is not a lawyer. The information in this article should not constitute legal advice. Always make sure to consult a lawyer before taking any legal action or filing a Title IX complaint or lawsuit.




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