Why Are Some Colleges Being Exempted From Federal Civil Rights Protections?
Reports have emerged that some religious colleges are being given exemptions from federal sex discrimination protections. Why is this happening, and how common is the problem?
To dig into that, we first need a small bit of background over federal anti-discrimination protections. Title IX of the Civil Rights Act is a federal civil rights protection that broadly prevents discrimination in an educational setting on grounds of someone’s sex. This isn’t just confined to things like sex discrimination in sports, but spans the entirety of the education sector with only narrow exemptions. This has meant, for example, that universities and colleges cannot treat female students differently than male students purely on the basis of their sex.
Earlier this year, the Department of Education issued a determination saying that, and in keeping with the Obama administration’s other determinations on this issue, Title IX of the Civil Rights Act also covers transgender students and protects them from discrimination on grounds of their perceived or actual gender presentation and gender identity, again with some exceptions and caveats. It also appears that lesbian, gay and bisexual students are covered too.
This was hailed as a quiet but major win for LGBT students who until this point had little legal recourse due to the fact that there still isn’t an explicit law banning anti-LGBT discrimination.
Despite all this however, reports have emerged that a number of colleges and universities have successfully obtained wavers in order to be able to keep discriminating against LGBTs.
The Department of Education has granted a waiver to 27 religious colleges and universities in 17 states over the last 18 months. The total enrollment of these schools tops 80,000 students, and nearly $130 million in federal research grants and student aid flowed to these institutions of higher learning in 2014. Those waivers are coming in at a rapid clip, and another 9 are pending as of August 2015. Though they span the United States, almost all are in the South or West.
Such waivers used to be relatively rare. However, it appears that following the Obama administration’s announcement that the Civil Rights Act already covers LGBT students, there has been a sharp increase in religiously affiliated institutions trying to obtain the waivers. In many cases these are institutions receiving tax-payer federal funds.
To be clear, and as the Department of Education website spells out, the waivers are usually granted on the basis that an educational institution has shown how waiving the statutory requirements in question, in this case Title IX provisions, will “increase the quality of instruction for students” and “improve the academic achievement of students.” For example, the institution might want to set up a special program for male students who, in its area, have been underachieving and, to ensure it remains compliant with the law, might seek out a narrow exemption for that program.
The freedom of information request that The Column used in order to obtain insight into the reasons for the requested waivers suggests that, far from achieving educational goals, the waivers may simply be being used to discriminate:
Thus far 36 schools have asked for the waiver. According to documents obtained in response to a Freedom of Information Act request filed by The Column in July, these schools have asked the federal government for these waivers not only to deny enrollment to or expel transgender students, but the broad-based waiver requests have also targeted gay, lesbian, and bisexual students and staff. In some cases schools have even asked for, and been granted, a waiver to allow them to expel women who have been pregnant outside of marriage.
This is despite the fact that the waivers are not supposed to be granted specifically to get around civil rights laws (per Article 7 of Section C of the waivers policy). There is of course some leeway granted to religiously affiliated schools to define their admissions and education criteria based on their interpretation of their religious beliefs, however when they are being given federal funds, there appears to be a legitimate question of why they are being allowed to discriminate in such a broad way.
Campus Pride, an LGBT college rights and action group, has started a shame list around this new information, hoping to raise public awareness of the fact of these attempts to lawfully discriminate. Executive Director Shane Windmeyer is quoted as saying:
“Discrimination is never okay. For these schools to espouse that their religion sanctions discrimination against any young person is careless and life-threatening. This list needs to be made public every time a school files for a Title IX exemption. It is shameful and wrong. If a college receives public funding, it should have to follow public laws. The government would be perfectly within its rights to make taxpayer funded aid to these colleges contingent on compliance with generally applicable nondiscrimination laws.”
Legal experts appear to be suggesting that if a student in particular feels they have been discriminated against and the College points to such a waiver, they should seek legal help because the waivers can be appealed. Campus Pride is also calling on students to make official complaints to the Department of Education.
At the time of writing the Department of Education has not yet answered concerns, and the religious colleges seeking such waivers also appear to be staying tight-lipped.
Clearly though, the wider issue of religious groups and institutions using tax payer money to continue to discriminate will not be going away any time soon.
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