WASHINGTON — The federal government’s broadening interpretations of Title IX, the 1972 anti-sexual-discrimination statute that applies to educational institutions, has raised concerns that the freedom of Catholic colleges and universities to teach and govern themselves according to the Church’s teachings on sexuality is at risk.
At least five Catholic educational institutions are among a wave of Christian colleges and universities that have applied for Title IX exemptions, in the wake of the Department of Education’s Office of Civil Rights’ expansion of Title IX’s interpretation to include “discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” These Catholic colleges and universities have argued that the new rule interferes with their ability to govern themselves in full accord with Catholic teaching.
There are also academic freedom concerns related to Catholic identity: At Marquette University, professors have complained that the aggressive implementation of Title IX’s expansive interpretations, combined with vague definitions of what constitutes a “hostile environment,” are suppressing their academic freedom to teach Catholic theology in the classroom and promote Marquette’s Catholic identity on campus.
According to the meeting minutes of Concerned Catholics at Marquette University that were provided to the Register, a number of faculty expressed concern that the new Title IX mandates being implemented at the Catholic institution “necessarily restrict the free exchange of ideas, particularly in theology and philosophy — the very core of Catholic, Jesuit education.”
The concerns were not limited to professors alone. One professor said some students shared they did not feel comfortable sharing Church teaching in that environment.
“This is the opposite of university education,” one professor at Marquette University, who declined to be identified for this article, told the Register. The professor said the university’s Title IX compliance on issues of gender and sexuality is dampening classroom discussion of Church teaching in these areas and throwing another wrench in ongoing efforts to strengthen the university’s Catholic identity and mission.
A number of colleagues, the professor added, related that the recent Title IX training and campus environment made it “very intimidating” to speak about Catholic doctrine on sexuality in their classrooms, because that might be perceived by a student as a “hostile environment” and thus worthy of a Title IX complaint. At least one theology faculty member teaching about Genesis in his classroom received a complaint, after a student who had two fathers objected to the classroom presentation of the Church’s teaching of marriage.
“Don’t people come to universities so they can grow up? If they’re going into safe houses, how can they grow up if they can’t even deal with someone who disagrees?” the professor said.
The Register reached out to Marquette for an explanation of its Title IX policies and enforcement practices. A Marquette representative pointed to the university’s Title IX policies posted on its website, but declined to comment further.
Title IX was originally enacted by Congress to prohibit discrimination based on sex at schools of all levels that received federal funding to subsidize educational programs and activities.
According to the “Title IX Resource Guide” issued by the Department of Education in April 2015, educational institutions controlled by religious organizations can apply for exemptions in instances where “compliance would not be consistent with the religious tenets of such organization.” Before the most recent wave of Title IX exemptions, most of the exemptions had been obtained in the 1970s and 1980s by various seminaries and divinity schools.
However, the OCR has stepped up its enforcement of Title IX since April 2011, in response to allegations that colleges and universities were not taking sexual violence on their campuses seriously. It has threatened that educational institutions found delinquent could have their federal funding revoked or their cases referred to the Department of Justice for litigation.
But academic voices on secular campuses, including feminist professors, have expressed concern that Title IX is being used to silence unpopular opinions instead of dealing with serious complaints of sexual assault or harassment. One famous case involves Laura Kipnis, a Northwestern University professor and feminist, who was accused of creating a hostile environment against reporting sexual assault over an article she wrote in The Chronicle of Higher Education called “Sexual Paranoia Strikes Academe” in which she criticized campus sexual conduct codes that “infantilized students while vastly increasing the power of university administrators over all our lives.”
Kipnis was eventually cleared in 2015, but by that time her case became a cause celebre of Title IX excesses and due process failures.
At Harvard University, 28 faculty of the law school wrote a public letter in October 2014, saying that Harvard was going far beyond what Title IX actually required, trampling over the due-process rights of the accused and adopting overbroad definitions of sexual harassment that threatened academic freedom and faculty governance.
Janet Halley, the Royall Professor of Law at Harvard Law School, told the Register that the improper application of Title IX does pose a threat to academic freedom on campuses and that “these problems are emerging all over the country.”
“There is plenty of evidence that Title IX is being expanded in application, way beyond its proper legal scope,” she said.
Halley explained this has happened in several steps. First, the OCR issued “non-binding advice documents” that do not have the status of legal regulation, but “massively expand the Supreme Court’s definition of sexual harassment.”
“This creates a lot of confusion about what sexual harassment actually is,” she said.
Second, she said the OCR has threatened loss of funds if colleges do not integrate “those expansive and confusing definitions into their campus policies and apply them in cases.” As a result, college and university administers are “scared out of their minds,” Halley added, and in an effort to protect their institutions’ funding “are over-complying, even with those expansive definitions.”
“Finally, the people doing adjudications, handling those cases on the ground, are not stopping cases that are manifestly ungrounded,” she said. “I am hearing about too many people who are being put through the process, on the basis of complaints that should simply lead to a conversation with the complaining students that these facts, even if true, do not violate our policy, and sometimes the process is truncated with massive due-process violations.”
So far, three Catholic universities have been granted specific Title IX exemptions: the Franciscan University of Steubenville (October 2014); Belmont Abbey College (February 2015); and St. Gregory’s University (March 2015). All three schools cited the OCR’s expanded interpretation of Title IX to include “gender identity, gender expression and noncomformity with gender stereotypes.”
Belmont Abbey College’s chancellor, Abbot Placid Solari, told the Register that the college was concerned about the OCR finding a Title IX right in favor of “a female student presenting herself as male to use the restrooms, locker rooms and living accommodations of her choice and to participate in boys’ athletic programs.” He explained that it could affect the college’s ability to make policy decisions in this area that would be consistent with the Church’s teaching that one’s biological sex determines one’s gender.
“Since we publicly identify as a Catholic college and conduct ourselves as such, our policies need to be in keeping with our fundamental identity,” he said, “both so that people who attend here can have the assurance that we are who we say we are and so the people who don’t attend here can also have the honest presentation of who we are and what we do.”
However, he added that Title IX exemptions are limited in scope, meaning that they only apply in the area where there is a conflict between the religious tenet and the statute.
“Exemption from Title IX is not permission to discriminate,” he said. “We are still obligated to protect people from harassment and unfair treatment.”
Two other Catholic colleges, the University of Dallas and John Paul the Great Catholic University in San Diego, have pending applications for similar Title IX exemptions.
“If we are to have an environment on campus that is consistent with what the Church teaches on human sexuality and gender, then that protection is pretty critical,” Derry O’Connell, president of John Paul the Great Catholic University, told the Register. “We can’t go around making statements that gender is fluid, and your biological sex is male, but you can identify as female — it’s not consistent with Catholic teaching, and they are not things we could affirm.”
In Need of Protection
The Human Rights Campaign, however, has argued the Title IX religious exemptions are “putting LGBT [Lesbian, Gay, Bisexual, Transgender] students at risk,” saying that they were a “license to discriminate” from the federal government.
Its “Hidden Discrimination” report listed 33 schools that obtained religious exemptions in the wake of the Obama Administration’s expansion of Title IX in 2013.
HRC president Chad Griffin said in the report’s cover letter that it was an “alarming trend” and said the DoE should publicize a list every year and force these schools to disclose “when they request the right to discriminate.”
Campus Pride, a similarly aligned organization, compiled a “Shame List” of the campuses that recently requested Title IX exemptions, calling for students to issue formal complaints to the OCR (which granted the exemption in the first place).
But Patrick Reilly, president of the Cardinal Newman Society, a nonprofit organization that promotes Catholic identity at colleges and universities, told the Register that Congress explicitly crafted exemptions for religious educational institutions “to protect their religious identities.”
“The big question is why some Catholic colleges are voluntarily declining to claim the exemption, when discrimination against our beliefs is a very serious prospect,” he said.
“Of course these colleges have no interest in sex discrimination. They have had no problems complying with Title IX,” Reilly added. “But now things are changing, and the Obama administration is pushing the extreme gender ideology that Pope Francis has strongly warned against. The law could be used to force practices that violate our beliefs and even natural law, unless religious educators claim the exemption that Congress gave them to uphold the First Amendment.”
Peter Jesserer Smith is the Register’s staff reporter.