Religious liberty in education has been under an alarming attack since the federal government began to use federal aid as a mechanism for influencing and controlling the education landscape in the mid-20th century.

Everyone must care about religious liberty protections: Christian colleges and universities, churches, para-church organizations, faith-based charities, international mission-based organizations (like IMB), and families with children looking to obtain higher education.

Effectively, all organizations that rely on Christian college graduates or any families that are concerned about future options for their children to attend a values-based, faith-filled university should care about this topic.

Religious liberty in education has been under an alarming attack since the federal government began to use federal aid as a mechanism for influencing and controlling the education landscape in the mid-20^th century. The rapid advancement of agendas in the last decade attacking chastity, families and other biblical values has exponentially increased the future risks of a collision course between governmental aid and oversight systems and Christian educational institutions at both the K-12 and post-secondary levels.

Many of the educational institutions created prior to the Great Depression were founded on Christian values. Consider the following tenant from the original mission statement of the first college founded in America, Harvard:

“Let every student be plainly instructed, and earnestly pressed to consider well, the main end of his life and studies is, to know God and Jesus Christ which is eternal life, John 17:3, and therefore to lay Christ in the bottom as the only foundation of all sound knowledge and learning. And seeing the Lord only giveth wisdom, let everyone seriously set himself by prayer in secret to seek it of him. Prov. 2:3”

Sadly, the list of once great Christian colleges that are now non-differentiable from their secular counterparts is long. If we underestimate the movement seeking to have government control of education, or mistakenly rely on perceived constitutional protections, the consequences will be dire to Christian-based education.

Freedom of religion may be a God-given right, but it is not absolutely—or automatically—protected by the Constitution. The 1st Amendment reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech….”

However, in the 230 years since this was ratified, numerous laws, statutes and regulations have more narrowly defined religious liberties and protections for people and institutions exercising their faith. In particular, the last 50 years has seen protections added by both the judicial and the legislative branches for categories not specifically addressed by the Constitution, such as race, sexual orientation and gender.

Affording constitutional protections to these categories has set the stage for potentially conflicting First Amendment rights. This conflict is especially obvious in education, where the federal government has conditioned the receipt of federal money upon compliance with socially progressive goals, using financial access to control all aspects of education policy and administration.

Additionally, because educational institutions are subject to the strictures of administrative law through both federal and state departments of education, obtainable judicial remedies are increasingly out of reach.

Through various rulings (commonly knowns as Chevron, Auer and Skidmore deference) the courts have given federal agencies extremely broad powers to create, interpret and apply regulations under their jurisdiction. Even as recently as June of 2019, the U.S. Supreme Court once again upheld the Auer principles.

Institutions under the oversight of a federal agency, such as the U.S. Department of Education (ED) should always be very concerned that new regulations or interpretations of existing regulations will change the status quo almost overnight — especially when power shifts via changes in administrations and appointees leading these agencies.

Of even greater concern is the fact that these agencies have much fewer procedural limitations and can issue interpretive rulings or guidance letters but without the constraints of the legislative or rulemaking processes. In this way, the executive branch can exercise the powers of the other two branches in an almost unfettered way.

Beyond this structural empowerment is the practical fact that most institutions adversely affected by such executive muscle flexing have neither the money nor the years required to fight back. This is a terrifying prospect regardless of one’s political position because the party in power can wield it as they desire without immediate accountability, if a reckoning comes at all. For religious affiliated institutions these risks can be even greater, as legal and social objectives can conflict with traditional biblical ideals, as we will see in the following sections.

For a private discussion with the Alliance Defending Freedom on religious freedom issues affecting Christian colleges, join us for our December 14, 2022 college leadership workshop. Click here or on the image below for more info and to register.

Title IX

Of particular interest to this discussion is Title IX of the Education Amendments of 1972, which most people have either never heard of or have generally only heard of in the context of equality in athletics. However, Title IX is much broader than sports and includes approximately 30 categories (as defined in 34 C.F.R. § 106.21-§ 106.61) and broadly covers the majority of school operations from admission and recruitment in Subpart C, to the delivery of educational programs in Subpart D and employment in Subpart E (for a full list see https://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr106.html#S12). As written, Title IX “protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance.”[1]

The scope of Title IX is incredibly broad and “applies to institutions that receive federal financial assistance from ED, including state and local educational agencies. These agencies include approximately 16,500 local school districts, 7,000 postsecondary institutions, as well as charter schools, for-profit schools, libraries, and museums. Also included are vocational rehabilitation agencies and education agencies of 50 states, the District of Columbia, and territories and possessions of the United States.”[2]

Despite this broad scope there is a carve out for educational institutions controlled by religious organizations in C.F.R. § 106.21, which states that “this part does not apply to an educational institution which is controlled by a religious organization to the extent application of this part would not be consistent with the religious tenets of such organization.” Most people read this to afford religious protections to any faith-based institution, but as interpreted by ED, the actual text of the exemption is narrow due to the definition of “controlled by a religious organization.” (A full description of how DOE applies exemptions to Title IX can be found at the following link: https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/index.html)

Reagan-Bush vs. Obama — A Comparison of Interpretations by Administrations

The Department of Education has historically exercised tremendous latitude when interpreting and applying its own rules. This latitude is stark when comparing and contrasting how the Reagan-Bush administrations approached the exemption’s “control” requirement in the mid-to-late 1980s versus how the Obama administration approached the same requirement for many of the same institutions from 2009–2016.

From the inception of Title IX in the early 1970s, schools submitted requests to ED for religious exemptions. For many years, almost all of these requests went unanswered. However, in 1985 under then Secretary of Education, William Bennett, ED granted a large number of religious exemptions. In some cases, ED looked to factual evidence of “control” by looking at explicit control directly by a third-party religious organization. An example of this was Baylor University’s control by the “Baptist General Convention of Texas.” [3] In other circumstances, ED expanded the definition of “control” to include the religious tenets of the college or university itself, as cited in the articles of incorporation, statements of faith, bylaws, or doctrinal statements. An example of this would be Biola University’s September 3, 1985 exemption approval on these grounds. [4]

For a period of over twenty years following the Reagan-Bush administrations until late in the Obama administration, there was very little activity from schools requesting Title IX religious exemptions. However, a spike in religious exemption requests occurred during the second half of the Obama administration following the increase in activity around transgender rights and same-sex marriage, including the U.S. Supreme Court’s June 2015 ruling on same-sex marriage. A poignant example of such activity was the Department of Education and the Department of Justice’s May 13, 2016 joint “Dear Colleague Letter on Transgender Students,” which stated that “the Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations,” as opposed to birth sex, which had previously been used. The vast majority of the recent exemption requests were to insulate institutional policies from the change in cultural, legal and regulatory interpretations since the 1980s.

In a never-before-seen public relations action in advance of the 2016 “Dear Colleague” letter, ED released all Title IX religious exemption requests and responses for public display (sorted into two distinct lists by those from prior to 2009 and those from 2009–2016). In June of 2016, I reviewed the correspondence for all 92 schools that made submissions since 2009 and ED’s response — or lack thereof. What I found was a much narrower interpretation of the Title IX exemption criteria by the Obama Administration. The key pattern was that independent Bible colleges that are not controlled by third-party church organizations (like the Southern Baptist Conference, Catholic Diocese or the Mormon Church), either had their request ignored or in some cases actually disputed for lack of church control, even though they had existing Title IX exemptions, which they were only looking to expand.

Out of the 92 submissions, 48 requests were approved (45 based on control by a third-party religious organization that was independent to the college, one for being a stand-alone school of divinity and two for requiring all students and staff to acknowledge affiliation to a specific religious denomination), seven were denied or requested to provide proof of “control,” and one school’s request to have its religious exemption revoked was approved.

Additionally, 36 schools never received any response at all from ED. Highlighting both the wide latitude in agency power and the fickle nature of how that power can be exercised from administration to administration, in 2017, the Trump administration rescinded the above-mentioned policy positions and at this point its agencies have returned to birth sex for purposes of enforcing gender-based regulations.

Conclusion

The history of Title IX religious exemptions demonstrates federal agencies’ extreme power to change and reinterpret their own rules without any changes to legislation and without the procedural controls of negotiated rulemaking or the exercise of the democratic process via the legislative branch.

This history also makes crystal clear that the protections for religious schools are far more limited than most might assume and can even evaporate overnight when interpreted by administrations heavily influenced by cultural developments that were not even contemplated when the statutes where written. Additionally, any religious protection could be further eroded by a single legal opinion or piece of legislation that creates an even greater divide between biblical principles and federal law.

From 2009–2015, I personally experienced the full power of the federal bureaucracy in another sector of higher education, as ideologically-motivated policy changes and reinterpretation of existing regulations led to the direct and/or consequential closure of over 1,000 of the approximately 1,500 proprietary schools that existed in 2009.

The exercise of that power ignored facts in order to gain political favor with specific constituencies. Therefore, I have a unique perspective on how virtually unlimited and powerful federal agencies’ authority can be unilaterally and unfairly flexed to further their administration’s policy objectives. The normal checks and balances were ignored because the agencies understood the practical reality: their actions would not be held to account before the institutions ran out of time and money to fight back.

With substantial portions of higher educational institutions cash flows derived from federal sources, the power and leverage only grows through financial pressures that can be placed on institutions, such as if ED chooses to withdraw or delay federal funding to the institution.

Sadly, in another unknown twist of the Higher Education Act, if ED’s actions lead to a season of insolvency that necessitates a bankruptcy or restructuring, neither the school nor its senior administrators can ever participate in federal aid programs again — which causes a chilling effect among decisionmakers to stand up to the agencies.

If I had not lived this experience firsthand, alongside some of the best legal minds in the country (who themselves were often dismayed at the lack of remedies a school truly has when facing the full power of the federal government), I would not have believed this could happen in America. In one of the most politically charged climates in our country’s history, and as a believing father of three daughters approaching college age, I feel compelled to shine a light on these issues.

But we should not feel hopeless. As we look to 2020 and beyond, I would hate to see Christian schools on the wrong side of the inevitable ideologically-driven collision between strict adherence to biblical standards and participation in federal and state aid policies driven by trendy ideology. For 2,000 years and throughout most of U.S. history, the majority of hospitals and educational institutions were founded by Christians, based on Christian values and supported by the church. Before the next, and potentially greater, crisis is upon us it’s time that we take steps to return to a model where these Christian schools are supported by the communities they serve.

[1] Title IX and Sex Discrimination: https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html

[2] Title IX and Sex Discrimination: https://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html

[3] https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/baylor-university-response-09261985.pdf

[4] https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/biola-university-response-09031985.pdf