Federal Court Upholds The Right Of Religious Schools To Adhere To Their Stated Convictions Regarding Sex

Or Grace Does Not Obliterate Nature

…This action concerns the expulsion of two students from a seminary school for violating school policies against same-sex marriage and extramarital sexual activity. Plaintiffs claim violations of: (1) Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681, et seq. (“Title IX”), against FTS; (2) the Unruh Civil Rights Act, Cal. Civ. Code § 51, against the Fuller Defendants; (3) breach of contract against FTS; (4) intentional infliction of emotional distress against the Fuller Defendants; (5) fraudulent misrepresentation against FTS; and (6) the Equity in Higher Education Act, Cal. Educ. Code §§ 66270, 66290.1-66290.2, against FTS.

…When prospective students apply to FTS, they must agree in writing not to violate FTS’ Community Standards. (Dkt. No. 20, Exh. 1 (Complaint Resolution Report); see also Dkt. 47 (Blomberg Decl.), Exh. 3-4 (Application for Admission).) The Community Standards are comprised of multiple policies maintained by the school.

…Plaintiffs allege FTS discriminated against them on the basis of sex because “[i]t is stereotypical for a female to marry a male.” (FAC ¶ 205). Therefore, FTS treated Brittsan “differently than a similarly situated female” because “if [he] was female, [FTS] would not have expelled him for marrying a male.” (Id.at ¶¶ 203-204.) Similarly, Plaintiffs allege FTS treated Maxon “differently than a similarly situated male” because “if [she] was male, [FTS] would not have expelled her for marrying a female.” (Id.at ¶¶ 206-207.)

FTS argues Plaintiffs’ interpretation of the phrase “sex” in Title IX impermissibly expands the scope of the statute to encompass sexual orientation, “an entirely distinct concept” that Congress did not intend to include in Title IX’s prohibitions. See N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 523, n.13 (1982) (“Title IX grew out of hearings on gender discrimination in education.”); see also Texas v. United States, 201 F. Supp. 3d 810, 832-833 (N.D. Tex. 2016) (“It cannot be disputed that the plain meaning of the term sex as in § 106.33 when it was enacted by the DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.”).

…Here, the Court finds that Title IX’s prohibition of discrimination on the basis of gender stereotypes encompasses educational institutions that discriminate against an individual for marrying a person of the same sex. Plaintiffs allege that they were treated differently than similarly situated persons of the opposite sex based on the stereotype that men are married to women. It is undisputed that Plaintiffs would not have been expelled if they were the opposite gender and married the same spouse. Under these facts, it is impossible to distinguish between discrimination on the basis of “gender stereotypes” and discrimination on the basis of “sexual orientation.” See Videckis v. Pepperdine University, 150 F. Supp. 3d 1151, 1159 (C.D. Cal. 2015) (“Simply put, the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.”). Therefore, Plaintiffs have adequately alleged a Title IX claim for discrimination on the basis of gender.

…The prohibitions of Section 1681 do not apply “to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization[.]” 20 U.S.C. § 1681(a)(3) (the “Religious Organization Exemption”). The regulations related to this exemption provide that “[a]n educational institution which wishes to claim the exemption … shall do so by submitting in writing to the Assistant Secretary [of the Department of Education] a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization.” 34 C.F.R. § 106.12.

…First, Plaintiffs allege FTS did not apply for or receive a religious exemption from the Department of Education and therefore cannot claim the Religious Organization Exemption now. (FAC ¶ 5.) The Fuller Defendants argue it is irrelevant whether FTS received an exemption from the Department of Education because the language of the statute and the Department of Education’s interpretation thereof do not require an educational institution to apply for an exemption to avail itself of the Religious Organization Exemption.

…Plaintiffs argue34 C.F.R. § 106.12required FTS to apply for or receive an exemption to avail itself of the Religious Organization Exemption in this case. Plaintiffs interpret the regulation to impose a mandatory process to which an educational institution must adhere as a prerequisite for claiming the exemption. That interpretation, however, would contradict the plain language of the Religious OrganizationExemption, which automatically exempts from the prohibitions of Section 1681 any educational institution that meets the statutory criteria for the exemption. Moreover, after the close of briefing in this case, 34 C.F.R. § 106.12(b) was amended to providein relevant part that “[a]n institution is not required to seek assurance from the Assistant Secretary [of the Department of Education] in order to assert such an exemption.”

…A plain reading of Section 1681 together with the Religious Organization Exemption indicates that the prohibition of sexual discrimination provided by Section 1681 “shall not apply” to an educationalinstitution if it “is controlled by a religious organization” and “application of this subsection would not be consistent with the religious tenets of such organization[.]” 20 U.S.C. § 1681. If these elements are met, then by its own terms Section 1681 does not apply to the educationalinstitution.

…For the Religious Organization Exemption to apply, application of Section 1681’s prohibition of gender discrimination must “not be consistent with the religious tenets” of FTS. ..FTS expelled Plaintiffs because it determined their same-sex marriage violated the Sexual Standards Policy, which defines marriage as “the covenant between one man and one woman” and prohibits sexual activity outside the confines of marriage, based on its interpretation of the Bible.

…The Court GRANTS the motion to dismiss. Count One, for violation of Title IX, is dismissed with prejudice. Read more»



    Post authored by:

  • R. Scott Clark
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    R.Scott Clark is the President of the Heidelberg Reformation Association, the author and editor of, and contributor to several books and the author of many articles. He has taught church history and historical theology since 1997 at Westminster Seminary California. He has also taught at Wheaton College, Reformed Theological Seminary, and Concordia University. He has hosted the Heidelblog since 2007.

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