Tennessee universities among those that have asserted right to Title IX exemption
By Lonnie Wilkey and Chris Turner
Baptist & Reflector
BRENTWOOD — In a world and culture where sexual orientation and long-held traditions such as marriage are constantly being redefined, Christian colleges are taking steps to protect their institutions. Approximately 30 religiously affiliated colleges and universities nationwide (including Carson-Newman College in Jefferson City and Union University in Jackson) have asked for and received recognition of their exemption from certain sex nondiscrimination regulations of Title IX of the Education Amendments of 1972. Title IX generally prohibits institutions of higher education that receive federal funding directly or indirectly from discriminating on the basis of sex. However, when it was enacted, Congress made provision for an exemption to accommodate religious beliefs, and the Department of Education acknowledges the exemption to those colleges and universities that follow the United States Department of Education’s process and assert their rights to the exemption. Carson-Newman and Union both asserted their rights in letters to the Department of Education earlier this year.
According to an article in the New York Times on Dec. 11, the “exemptions are in some cases wide-reaching and exempt schools from abiding by provisions of the law that they feel are inconsistent with their religious beliefs on a range of topics, including gender identity, sexual orientation, marital status, and whether a person has had an abortion.”
The Times further reported, “school administrators say the exemptions are a defensive measure that lets them abide by their religious beliefs during a time of social and legal change on issues of sexuality and gender, but gay and transgender activists criticized them as an open door to discrimination.”
Earlier this month, The Column, a nonprofit LGBT media organization, published the exemption request letters of schools that have claimed the Title IX exemption. The letters were obtained through a Freedom of Information filing. Both Carson-Newman and Union’s letters were among the several published on the website setting off media attention in East Tennessee when some Carson-Newman alumni publicly criticized the school for claiming the waiver.
Carson-Newman President Randall O’Brien told the Knoxville News-Sentinel, “The spirit of the exemption was to clearly identify each school as a Christian institution thereby strengthening First Amendment standing, which allows each school to operate according to its religious principles.”
In an interview with the Baptist and Reflector, O’Brien clarified his position. He said Carson-Newman does not illegally discriminate in the admissions process.
Once students are accepted and are on campus, however, the exemption could be used, he acknowledged.
“We have a code of conduct that we expect all faculty, staff, and students to be in compliance with,” O’Brien said. “This exemption will allow us to deal with issues that arise that are in conflict with our religious beliefs,” he added.
At the request of the Baptist and Reflector, attorney James P. Guenther offered clarification on why Christian colleges are now claiming the exemption that basically has been law for decades. Guenther is legal counsel for the Tennessee Baptist Convention, the Southern Baptist Convention, and other Baptist entities, including Carson-Newman and Union.
Guenther noted that the United States Department of Education enforces Title IX. “While the law simply iterates the exemption, the department’s regulations say that a school which is eligible for the exemption must assert its entitlement to the exemption and advise the department which of the regulations enforcing Title IX are in conflict with the religious tenets and what those religious tenets are,” Guenther said.
He stressed that the exemption is not new. “What is new is same-sex marriage and the interpretation of what constitutes “sex discrimination,” he noted. Some courts have interpreted sex discrimination to include something very close to sexual orientation discrimination.
“In short, church-related schools are in a new world when it comes to sex discrimination. The interpretation of the old law has changed and new rights (and thus duties) have been declared by the courts,” he said.
Guenther said schools must find their way in this new world, and must ask themselves whether their religious tenets are contrary to these new understandings of what it means not to discriminate on the basis of sex. Though the exemption definitely applies to the present, Guenther observed that the primary reason Christian schools are asserting their entitlement to the exemption now is to protect the institutions in the future as gender identity and same-sex issues continue to be defined by the courts.
“Must a school acquiesce to the request of a person who is physically a male but who presents as a female and wishes to live in a female dorm with a female roommate and shower with women in physical education and use the female restroom?” Guenther questioned.
Congress put the exemption in Title IX “recognizing that religious bodies may have religious tenets which are inconsistent with the law’s expectations,” Guenther said. “Congress recognized that this exemption would give religious schools, of every stripe, the freedom the First Amendment guarantees,” he added.
“So, in this new world more church-related schools are concluding that to be legally safe, they need to advise the federal government, as the law requires, of their religious tenets and the potential conflicts those tenets might pose with Title IX.
“The exemption helps Baptist colleges and universities continue to be institutions which reflect their religious beliefs” while giving “them some of the freedom they need as they chart their individual paths forward in this evolving culture,” he said.
Guenther emphasized that “each school on a case-by-case basis will be able to determine how their religious tenets will guide them in their use of this exemption.”
In order to claim the exemption both Carson-Newman and Union had to demonstrate it is “controlled” by a religious body (in their case, the Tennessee Baptist Convention),” Guenther said.
Guenther indicated both universities are “controlled,” as that term is used in the law, by the Tennessee Baptist Convention because the convention elects each institution’s trustees.
“Our universities promise their students the opportunity to pursue an education in a Christ-centered university distinguished by Christian values and influences,” said Randy C. Davis, executive director/treasurer of the Tennessee Baptist Convention.
“We believe, in this country, students should have the right to choose a university that makes such a promise and our universities must preserve their ability to fulfill that promise. We know that our universities could, if and when the need arises, use the exemptions so that the universities can continue their long-standing code of conduct policies.”
Davis added that he applauded the leadership of both Tennessee universities for taking a long view of how the schools will operate within a rapidly changing culture.
“This exemption was fully embraced by the boards of both universities and signed and submitted by their respective presidents,” Davis said. “Both universities have proactively taken steps to receive the protection the Title IX exemption allows by order of Congress and granted by the U.S. Department of Education. I stand with our universities for their wise and courageous action for biblical principles and the right to offer an excellent educational experience founded on a biblical worldview.”