Title IX Enforcement and LGBT Students

The Trump administration last week generated plenty of headlines by withdrawing guidelines issued by the Obama administration regarding Title IX’s protections for transgender college students.

Remaining unnoticed, however, is an apparent conflict between two prominent religious universities’ takes on student sexuality and the 2014 guidelines on preventing discrimination based on sexual orientation and identity. And that guidance was not affected by the White House action last week.

Bob Jones University and Liberty University, both conservative private institutions, have codified prohibitions on transgender identities and sexual relations outside of heterosexual marriage of the Christian variety.

For example, the Liberty Way student honor code says, “Sexual relations outside of a biblically ordained marriage between a natural-born man and a natural-born woman are not permissible at Liberty University.”

Bob Jones says in its student handbook that the Christian Bible “names as sinful and prohibits any form of sexual activity between persons of the same sex.” The university says it expects all employees and students to abide by cited biblical statements on sexuality and gender identity.

As a result, the two universities’ prohibitions on homosexual behavior could be used to penalize or even expel students. And while many religious colleges since 2014 have secured partial Title IX waivers from the U.S. Department of Education -- citing religious freedom as a reason to ignore aspects of the Obama administration LGBT guidance -- neither Bob Jones nor Liberty has pursued that option.

Students and alumni have accused both universities of being unwelcoming to gay and transgender students, although perhaps more so for students at the smaller Bob Jones, which has previously acknowledged that its policies “forbid homosexuality” and until 2000 had barred interracial dating. Liberty University and its president, Jerry Falwell Jr., last year and in the past have defended the university against charges of anti-gay bias, and at times have been praised by gay Liberty alums.

Even so, the Liberty and Bob Jones student handbooks appear to run afoul of guidelines on Title IX of the Education Amendments Act of 1972 and sexual violence that the U.S. Department of Education’s Office for Civil Rights issued in 2014, according to several former department officials, gay rights groups and experts on Title IX compliance.

A roughly 450-word portion of the 46-page Q&A says all students are protected from “sexual discrimination” under Title IX, including “straight, gay, lesbian, bisexual and transgender students.”

The guidelines also say, “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation. Similarly, the actual or perceived sexual orientation or gender identity of the parties does not change a school’s obligations.”

Inside Higher Ed reached out Thursday to officials at Bob Jones and Liberty to respond to questions about their student handbooks and Title IX compliance. Bob Jones did not respond with comments before this article was published Monday. Liberty said in a written statement that the university is in full compliance with Title IX and there is no conflict between the 2014 guidelines and the university's student honor code.

In addition, Liberty cited protections from the U.S. Congress on religious freedom.

"Congress has granted Liberty University a religious exemption to Title IX," the university said. "While we know many religious institutions have sought the Department of Education’s concurrence that the exemption applies, Liberty has not concluded that it is necessary to do so."

Title IX and Federal Aid

Whether the Obama administration’s approach with its 2014 guidance document was fair or enforceable, instead of being an example of the executive branch exceeding its authority, depends on whom you ask -- much like considerations of the separate OCR guidance document, issued last May, which said Title IX applies to discrimination based on gender identity as well as gender.

Betsy DeVos, the U.S. secretary of education, last week called the now rescinded transgender guidance a “very huge example of the Obama administration's overreach.”

Conservative policy makers and some within higher education say the U.S. Congress should be consulted in determining what constitutes a violation of Title IX. As a result, it’s unclear how much binding power the 2014 Obama guidelines would have if challenged.

The department has limited enforcement options for any Title IX violation by a college. Its only statutory recourse, according to experts, is the nuclear option of yanking an institution’s eligibility for federal financial aid under Title IV of the Higher Education Act.

As a result, the political "win" for an administration comes in issuing a guidance document, or rescinding one, said Alexander Holt, a policy analyst for New America's education policy program. Enforcement, however, is much trickier.

"For Obama, extending sexual identity as a right covered by Title IX was the news. But both Obama and the religious schools seem to have calculated that a legal fight was a bad idea," he said via email. "For Obama, because a worst-case scenario would mean the courts checking the power of the executive fiats. For the schools, my guess would be that in a world of declining enrollment for privates, strict exclusion is not financially viable. So better for everyone to keep their decrees while treating enforcement quite differently."

It’s highly unlikely, observers said, that the Trump administration would crack down on Liberty or Bob Jones for an Obama-era guidance document. In fact, if the White House even noticed a possible violation or was pressured to challenge an institution’s compliance with the guidelines, it could increase the odds that the Education Department would issue a new guidance upending the Obama administration’s definitions of Title IX protection for LGBT students.

Plenty of federal aid dollars flow to the two universities. Liberty is one of the largest online degree providers in the nation, according to federal data, enrolling more than 94,000 students online and 15,000 at its campus in Lynchburg, Va.

In 2015, Liberty received roughly $350 million in federal aid, with $91 million in Pell Grant revenue and $256 million in federal student loans. Bob Jones, which is located in Greenville, S.C., and enrolls 3,000 students, that year received $4.7 million from Pell Grants and $6.1 million in federal loans.

Those funding streams face little chance of being cut over Title IX, at least according to the GOP platform unveiled at last year’s Republican National Convention. (Liberty President Falwell, an early Trump supporter, had a prominent speaking slot at the convention and says he will lead a White House task force on higher education, with a purview that remains unclear.)

The Republican platform voiced support for the “original intent” of the 1972 Title IX, which prohibits discrimination based on sex. But the GOP said bureaucrats and the Obama administration were using Title IX to “impose a social and cultural revolution upon the American people by wrongly redefining sex discrimination to include sexual orientation or other categories,” adding that Obama was “determined to reshape our schools -- and our entire society -- to fit the mold of an ideology alien to America’s history and traditions.”

Religious Exemptions

Gay rights groups and the American Civil Liberties Union praised the Obama administration’s inclusion of LGBT protections in the 2014 guidance document, saying it would help reduce discrimination on campus.

The Title IX Q&A was signed by Catherine Lhamon, then assistant secretary of education for civil rights, who touted the LGBT section in a written statement.

“Our federal civil rights laws demand that all students -- women and men; gay and straight; transgender or not; citizens and foreign students -- be allowed to learn and participate in all parts of college life without sexual assault and harassment limiting their opportunities,” Lhamon said.

Critics, however, said the White House was unfairly attacking religious colleges with its guidelines. Some also complained about what they saw as a pattern of the Obama administration micromanaging higher education under Title IX.

Despite the controversy and uncertainty about whether the guidelines would hold up if challenged, several religiously affiliated colleges decided not to take any chances. After the 2014 guidance was released, dozens of Christian institutions sought and received waivers from aspects of Title IX by claiming a religious exemption.

George Fox University was one of the first. The Christian college, which is located in Oregon, was granted a waiver to discriminate against a transgender student by denying him the housing he requested. Other colleges quickly followed with exemptions to aspects of Title IX that the new guidance covered.

The department has few options for rejecting a religious exemption to Title IX. Several experts said they were aware of no cases where a request from a college had been rejected.

Gay rights groups have fought the department on exemptions. Shane Windmeyer, executive director of Campus Pride, which advocates on behalf of gay, lesbian and transgender students, has called it "extremely problematic" for federal-aid-eligible colleges to get exemptions that allow them to punish transgender and gay students for simply being who they are.

Campus Pride, with help from congressional Democrats, successfully pushed the department to publicly post its correspondence with colleges over religious exemptions to Title IX. The list of requests from roughly 105 institutions and the department’s responses went live last year and is still on the department’s website, although some worry that the Trump administration will take down the page.

As the fight played out over the last couple years, some accused gay rights groups and the department under President Obama of unfairly attacking Christian colleges.

For example, Andrew T. Walker, director of policy studies for the Ethics and Religious Liberty Commission, wrote last year in the National Review that the Obama administration had colluded with activists to attack the religious liberty of colleges to “enforce long-held Christian moral expectations about sex, marriage and gender as a condition of admittance and attendance.”

Christian colleges began seeking waivers, “in light of the Obama Department of Education’s disturbing pattern of reinterpreting Title IX to include sexual orientation and gender identity under the category of ‘sex discrimination,’ which Title IX specifically prohibits,” Walker wrote. “Keep in mind that the Department of Education has reached its new interpretation without authorization from Congress.”

Liberty and Bob Jones both have received federal waivers. However, apparently unnoticed by gay rights groups and other Title IX watchers, those exemptions are narrow and do not cover most of the LGBT protections the Obama administration described. The federal system for exemptions requires colleges to seek a waiver that specifies particular parts of Title IX that they say would violate religious beliefs. Exemptions do not cover all of Title IX.

Liberty requested its waiver a few months before the department released its 2014 guidelines. The exemption relates to the university’s ability to discipline students who have abortions.

Last year Bob Jones requested an exemption, which the department granted. The university requires that its president and other administrators be ordained preachers. The waiver allows Bob Jones to accept only men as applicants for these jobs, based on the university’s interpretation of the Bible. Likewise, under the waiver Bob Jones may require that preachers who speak on campus be men.

Neither of these exemptions appear to extend to the two university’s prohibitions on nonheterosexual relations or to Bob Jones’s language on gender identity, according to experts who reviewed them.

Speaking generally, not specific to the Liberty or Bob Jones examples, the 2014 guidelines apply broadly to LGBT issues, said Jim Newberry, a lawyer who heads the higher education practice at Steptoe & Johnson.

The guidelines “make it really clear that the department viewed claims of discrimination based on sexual orientation or gender identity as being subject to Title IX,” Newberry said. “Therefore, the department’s current position would be that claims of discrimination based on either sexual orientation or gender identity would subject to scrutiny under Title IX.”

A Different Education Department

Windmeyer said Bob Jones should face consequences for its stance on LGBT issues.

“Bob Jones University violates students' Title IX rights all the time, and they have not applied for an exemption to do so,” Windmeyer said via email, adding that the university faces a possible threat from “students who plan to challenge the university's educational accreditation with accreditation agencies, as a result of harmful, discriminatory practices.”

The university has a high-profile history of fighting the feds over discrimination.

Bob Jones lost its nonprofit tax exemption after the U.S. Internal Revenue Service in 1976 found that it was practicing racial discrimination with a ban on interracial dating. After a long court battle, the U.S. Supreme Court in 1982 upheld the IRS's decision.

Bob Jones dropped the dating ban in 2000 and later apologized for practicing racial discrimination. It became eligible to receive federal financial aid in 2006 and just announced plans to regain its tax exemption in March.

Camille Kaminski Lewis is a Bob Jones alumna and former faculty member at the university. Asked if LGBT students face challenges at Bob Jones, she said, “Oh, Lord, yes.” She said several students had been expelled over the years related to their sexual orientation. (Lewis last worked at the university in 2007.)

The climate for LGBT students at Bob Jones is “overwhelming scrutiny and always looking over your shoulder,” she said, adding that there’s “no chance to relax and just learn.”

At Liberty, Falwell in recent years has pushed back on perceptions of anti-gay bias. And the university appears to have softened its student honor code, recently dropping a passage that prohibited “homosexual conduct or the encouragement or advocacy of any form of sexual behavior that would undermine the Christian identity or faith mission of the university.”

Falwell also has been critical of the dominance of liberalism on college campuses.

“How can you have political correctness and academic freedom at the same time?” he said during an interview at the Republican convention last July. “A lot of these schools have become Democratic Party indoctrination camps.”

That language echoes DeVos’s speech last week at a high-profile conservative event. With Falwell and DeVos occupying leadership roles in the Trump administration’s still-developing oversight of higher education, it’s almost certain that the transgender guidelines won’t be the last revision to Obama-era interpretations of Title IX.