In a tag-on measure to highly anticipated and deeply controversial new regulations regarding how educational institutions must respond to sexual harassment and assault under Title IX, the Department of Education (DOE) included what it terms a clarification of the rules regarding religious exemption to Title IX. Specifically, the tag-on measure modifies 34 CFR § 106.12(b) to state that an educational institution controlled by a religious organization may seek written assurance from DOE’s Office of Civil Rights (OCR) recognizing its claimed exemption from Title IX, but the educational institution is not required to do so ex ante in order to assert a religious exemption if a complaint later arises against it.
For the past 45 years, since the Title IX regulations first went into effect in 1975, OCR has provided hundreds of written assurance letters to educational institutions that claimed religious exemption to Title IX. In all but a tiny handful of cases, educational institutions claimed exemption in the abstract rather than after a concrete complaint arose. Starting in late 2015, OCR began to make available on its website copies of those assurance letters as well as the correspondence from educational institutions that induced them. Before then, those documents were only available to the intrepid few who braved the laborious FOIA process, a process that, in my experience, also revealed the somewhat hit-and-miss nature of OCR’s internal record-keeping regarding religious exemption to Title IX. OCR issued its first assurance of religious exemption to Title IX to Brigham Young University in August 1976 after a drawn-out process that included an on-site visit to BYU. Nonetheless, OCR itself could never produce for me a copy of its final assurance letter to BYU, a document we all knew existed, despite my increasingly creative speculations on its archival location. Likewise, OCR could provide no information on how it had developed the control test found in the 1977 HEW Form 639-A that identified how an educational institution could meet the statutory requirement of “controlled by a religious organization” to claim exemption to Title IX.
And yet, OCR relies on both FOIA and a lay understanding of what constitutes control to justify the limited scope of its clarification to 34 CFR § 106.12(b) and educational institutions’ obligation to publicize their non-discrimination policy. OCR rejected comments received during the notice of proposed rule making process to make its publication of religious exemption claim letters and assurances mandatory rather than discretionary (pp. 1663, 1668). OCR also rejected comments urging that an educational institution’s publicity requirement under the new 34 CFR § 106(b) include an explicit identification of claimed religious exemptions to Title IX rather than the more generic statement that the institution does not discriminate based on sex, except as permitted by Title IX (pp. 1626, 1627, 1650). OCR argued that FOIA offers a sufficient alternative to OCR’s publication of religious exemption claim and assurance letters on its website or elsewhere. (pp. 1663, 1669). OCR defended a religious educational institution’s generic statement regarding non-discrimination as sufficiently informative because students also receive information about Title IX grievance procedures at their institution (pp. 1629, 1654). Moreover, OCR twice asserted that “students and prospective students likely will know whether an educational institution is controlled by a religious organization” (pp. 1655, 1666). Consequently, they will not “be surprised by a recipient’s assertion of such a religious exemption” in response to a complaint (p. 1655).
First, my experience gathering OCR’s assurance letters and the accompanying institutional correspondence in 2014 and 2015 before they were available on the website highlights the challenges and costs of relying on FOIA. FOIA is an expensive proposition for both the government and the requestor and only as useful to either as the record-keeping and archival system that supports it.
Second, the assertion that ordinary college students likely know the corporate governance structure of any institution, even the educational institution they attend, beggars belief. My own two students, living again in our COVID-reconstituted household while they attend a large public university remotely, do not. Their STEM majors, computer science and biomedical engineering, do not explain away their lack of this specific piece of knowledge. It just does not matter to them, or to most students. Students who attend private religious educational institutions well know that the institution has a religious bent, history, philosophy, or commitment, a religious character that may indeed have motivated their choice to attend in the first place. Nonetheless, neither the religious character of an educational institution itself nor students’ understanding of it constitute “control by a religious organization” even in the most generous interpretations of the term “control.” OCR acknowledged as much by separately proposing new regulations that would, for the first time, formally — and, in my view, far too expansively — define “controlled by a religious organization” for purposes of religious exemption to Title IX. Unfortunately, OCR does not reference its proposed regulatory definition of control when explaining its clarification of § 106.12(b), but absurdly undermines the very need for that definition by asserting its obviousness to college students.
When I present on Title IX to undergraduate students at BYU, my home institution, I post the specific religious exemptions our institution has claimed over time. It catches them up short. They are surprised, although OCR suggests they should not be, that, among others, BYU’s documented exemptions to Title IX allow different career and educational counseling based on a student’s gender. Others have no clue what Title IX is, let alone religious exemption to it. As part of their recent Global Women’s Studies capstone project on Title IX and BYU athletics, Marisa Johns and Madeleine Reber queried on their Instagram feeds: “Do you know what Title IX is?” While more than 80% of the 200 respondents replied “Yes,” responses to the second question — “What is Title IX?” — suggested almost no understanding that Title IX is, first, a federal statute that, second, prohibits discrimination based on sex in, third, all the activities and programs of an educational institution that receives federal financial assistance. Even in a university town whose Title IX woes generated a 2016 Pulitzer Prize in local reporting for the Salt Lake Tribune newspaper, not everyone knows what Title IX is or what it does.
Kif Augustine-Adams is the Ivan Meitus Chair and Professor of Law, Brigham Young University Law School