One day after telling a federal district court it would “vigorously defend” laws exempting evangelical Christian colleges and universities — and other faith-based schools — from rules promoting LGBTQ rights, the Biden administration’s filing in the case lost its vigor. Literally, as President Biden himself might say.
On Tuesday, Justice Department lawyers, responding to a petition from some Christian schools and their trade association to intervene in Hunter v. Department of Education, rejected their claims the government would not “vigorously” defend those exemptions. The Wednesday filing omits that language, instead saying the intervenors “have not at this time made the necessary ‘compelling showing’ that the Federal Defendants will fail to adequately represent their interests in defending” the religious exemption.
The revised filing also omits a statement in the Tuesday DOJ document: “Neither the Administration’s stated policy positions nor the Department’s review of existing regulations abrogate the government’s duty to defend federal statutes and regulations in court as a legal matter.” Seeing the words dropped could heighten concerns over the Biden administration’s willingness to protect these exemptions.
Originally intended to cover direct federal funding, Title IX’s provisions were expanded in 1988 to say that indirect funding — such as federal student loans and grants — would also place schools under Title IX’s restrictions. Faith-based schools continued to be exempted, however.
Paul Southwick, who heads the Religious Exemption Accountability Project (REAP) and filed the Hunter lawsuit in Oregon, said in a telephone interview “it remains to be seen” whether the new DOJ filing is merely “semantics or a substantive shift” in policy.
“They’ve backtracked a little, but it’s more that they backtrack in the language they use,” Mr. Southwick said.
Now, he added, “instead of ‘vigorously’ defending, they are now saying that they will ‘adequately’ defend the constitutionality of the statute. … The administration shouldn’t be defending the religious exemption at all. It’s unconstitutional.”
In the Hunter lawsuit, filed in March, the REAP plaintiffs argue granting religious schools an exemption from Title IX provisions renders them “unprotected from the harms of conversion therapy, expulsion, denial of housing and healthcare, sexual and physical abuse, and harassment, as well as the less visible, but no less damaging, consequences of institutionalized shame, fear, anxiety and loneliness.”
The plaintiffs argue that granting religious exemptions makes schools vulnerable to discrimination.
“The Constitution guarantees equal rights for all Americans, holding space for religious belief and practice, while ensuring that religion does not serve as a government-funded vehicle to harm racial, ethnic, gender, sexual, religious or other minorities,” REAP’s website states.
A spokeswoman at the Council for Christian Colleges and Universities did not respond to a request for comment on the language change.
• Mark A. Kellner can be reached at email@example.com.
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