In late January 2020, the Trump Administration proposed new regulations to define “controlled by a religious organization” for purposes of religious exemption to Title IX.  The proposed regulations eviscerate the common meaning of control and ignore the grammatical structure of the phrase “by a religious organization.” The new definition would expand the scope of religious exemption to Title IX so broadly that any educational institution with basic ethical standards for its community could meet the criteria for control to avail itself of an exemption to Title IX.  The expanded definition exceeds by far the scope of religious exemption found in the statute itself. 

Title IX prohibits sex-based discrimination in educational institutions that receive federal financial assistance. Title IX also explicitly allows religious exemption to its antidiscrimination provisions. Title IX “shall not apply to an educational institution which is controlled by a religious organization” if its application “would not be consistent with the religious tenets of such organization.” Neither Title IX nor the implementing regulations promulgated in 1975, however, defined “controlled by a religious organization.”  In the ensuing 45 years, the federal administrative agencies charged with enforcing Title IX—first the Department of Health, Education, and Welfare (HEW) and, since 1979, the Department of Education (DOE)—have, when they paid any attention to the issue, interpreted “controlled by a religious organization” as an internal policy matter.

In the mid-1970s, HEW’s Office for Civil Rights drafted an “Assurance of Compliance” document, HEW Form 639-A, that it published in the Federal Register in March 1977 and circulated directly to educational institutions in an attempt to facilitate compliance with the statute. The instructions to HEW 639-A provided a control test, explaining that HEW would consider an educational institution to be “controlled by a religious organization” for purposes of a religious exemption to Title IX where:

(1) It is a school or department of divinity; or

(2) It requires its faculty, students or employees to be members of, or otherwise espouse a personal belief in, the religion of the organization by which it claims to be controlled; or

(3) Its charter and catalog, or other official publication, contains explicit statement that it is controlled by a religious organization or an organ thereof or is committed to the doctrines of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof.

Between its publication in the Federal Register in 1977 and October 2015, when the Department of Education next publically acknowledged it on its website, the control test for religious exemption to Title IX remained utterly obscure, hidden from public contemplation. 

The newly proposed regulations, to be added as subsection (c) to 34 CFR § 106.12, identify seven criteria by which an educational institution can be “controlled by a religious organization.” The first three criteria of the  new subsection (c) mirror those of 1977 HEW Form 639-A.  The remaining four expand markedly the definition of “controlled by a religious organization”:  

(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.

In particular, the proposed (c)(5) is exceptionally broad making eligible for exemption institutions that “subscribe to specific moral beliefs and practices” and potentially discipline “members of the institution community . . . for violating those beliefs or practices.” Under that standard, any educational institution that has an honor code or a prohibition on plagiarism or a requirement that people treat each other with respect or refrain from sexual harassment or assault, and disciplines persons who violate those beliefs or practices, would meet the control test for religious exemption to Title IX.  That many newly eligible, and otherwise secular, educational institutions may not actually assert exemption to Title IX is beside the point. The proposed regulations create that possibility and along with it an exceptionally tempting legal tool for educational institutions to defend against complaints of sex discrimination.

In 1988, Congress rejected a similar legislative attempt to broaden the scope of religious exemption to Title IX.  Senator Orrin Hatch (R-Utah) had proposed changing the requirement that an educational institution be “controlled by” a religious organization to one that the institution be simply “closely identified” with the tenets of a religious organization.  By allowing educational institutions to provide statements that closely identify themselves with religious principles and practices rather than evincing any sort of control, the criteria set forth in proposed c(4) and c(6) resurrects an expanded version of religious exemption that Congress has already explicitly rejected.

At the same time, the phrase “controlled by a religious organization” contemplates two entities, the first an educational institution that is controlled by the second, a religious organization.  None of the new criteria contemplate two entities, but rather a single self-referential educational institution.  The proposed regulations eviscerate the common meaning of control and ignore the grammatical structure of the phrase “by a religious organization.”

Part Two of this post will offer a discussion of proffered justifications for the expanded control test for religious exemption to Title IX.

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