The Trump Administration recently proposed new regulations to define “controlled by a religious organization” for purposes of religious exemption to Title IX. Neither Title IX, passed in 1972, nor the implementing regulations, promulgated in 1975, defined “controlled by a religious organization.” In the ensuing 45 years, the federal administrative agencies charged with enforcing Title IX have interpreted “controlled by a religious organization” in ad hoc processes.

Using notice-and-comment rulemaking to turn the control test from an obscure internal policy into a formal regulation marks a positive step. The justification, however, that the Department of Education (DOE) offers for its new and highly expansive definition of “controlled by a religious organization,” is not defensible. DOE states that its past practices regarding religious exemption to Title IX “may have caused educational institutions to become reluctant to exercise their rights under the Free Exercise Clause of the First Amendment.” DOE provides no evidence to support the assertion of institutional reluctance, no quantitative data, no qualitative example. In fact, none exists.

Not once in 45 years has DOE or its predecessor federal agency ever denied an educational institution’s assertion of religious exemption to Title IX. Not once, no matter the presidential administration in place or its particular political stripes. In practice, educational institutions themselves, not the federal government, have consistently defined their own religious exemption to Title IX. Although at times religious educational institutions have had to do a little explaining, any exemption they asserted, they got. The federal government has always deferred. Always.

Title IX’s statutory scheme for religious exemption arguably requires that deference. What the statutory scheme does not require, however, is foregoing the common understanding of words and grammatical structures. “Control” or “controlled by a religious organization” are not terms of art in a highly technical field of endeavor. Religious exemption to Title IX is not tax, bankruptcy, or immigration. As I argued in a previous post, the proposed regulations exenterate the common meaning of control and ignore the grammatical structure of the phrase “by a religious organization.”

Moreover, both the original control test found in HEW Form 639-A in 1977 and the expansive definition proposed in 2020 find little grounding in sources of law. In the proposed regulatory definition of the control test, DOE acts as an agent unto itself. That bold agency began in the 1970s in HEW Form 639-A, but the new elements of the control test exceed license.

The 1977 HEW Form 639-A provided three criteria by which an educational institution could demonstrate control by a religious organization for purposes of exemption to Title IX. DOE’s predecessor federal agency cited to a specific section of the Higher Education Act of 1965 for a more detailed definition of the first criteria, a “school or department of divinity,” but DOE provided no other justification for the definition of the control test it published in the Federal Register in 1977. The second and third criteria evinced legal concepts, but without explicit citation to law. The second criteria grounded itself in reasonableness, providing a definition of “controlled by a religious organization” as an educational institution requiring its faculty, staff, and/or students to belong to or espouse to the beliefs of a particular religious community. The third criteria echoed principles of corporate governance with the religious organization appointing members of the governing body of the educational institution and also providing significant financial support.

The provenance of the four additional criteria in the newly proposed regulations remains elusive.

(4) A statement that the educational institution has a doctrinal statement or a statement of religious practices, along with a statement that members of the institution community must engage in the religious practices of, or espouse a personal belief in, the religion, its practices, or the doctrinal statement or statement of religious practices.

(5) A statement that the educational institution subscribes to specific moral beliefs or practices, and a statement that members of the institution community may be subjected to discipline for violating those beliefs or practices.

(6) A statement that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings.

(7) Other evidence establishing that an educational institution is controlled by a religious organization.

DOE justifies the new (c)(4) and (c)(5) as partly based on its past practice, citing an internal memorandum from then-Acting Assistant Secretary for Civil Rights William Smith in 1989. That memorandum, however, supports only (c)(4) as part of the agency’s past practice, not the expansive (c)(5). The 1989 memo’s discussion of what DOE now proposes as (c)(5) dealt not with the control test, but with a separate requirement for religious exemption to Title IX: an educational institution’s statement of the extent to which its religious tenets or practices would not be consistent with application of specific provisions of Title IX’s implementing regulations. DOE collapses the two separate requirements in the new (c)(5).

Without citing a memorandum or providing other evidence, DOE explains the new (c)(6) by reference to long internal practice and then recursively to (c)(1) which recognizes a school of divinity as meeting the control test. Here again, DOE defies the grammatical structure of the statute which requires two entities, one controlled, the other controlling. Under First Amendment principles, that defiance may be defensible for a school of divinity. It is not for other educational institutions. DOE also explains the new (c)(6) as consistent with a new definition of “religious mission” that DOE promulgated in another context in late 2019. Essentially, DOE argues that an educational institution’s religious mission itself demonstrates control by a religious organization. In doing so, DOE again collapses two distinct statutory requirements – control and religious tenets — into one. DOE rationalizes the new (c)(7) as a safe harbor “in recognition that Congress did not promulgate an exclusive list of criteria by which an educational institution may assert an exemption under Title IX.” That statement is true. Congress did, however, identify two specific criteria for an educational institution’s religious exemption to Title IX: control by a religious organization and inconsistency with religious tenets or practices. DOE’s proposed regulations expand religious exemption to Title IX beyond statutory recognition.

Kif Augustine-Adams is Ivan Meitus Chair and Professor of Law at Brigham Young University Law School.