Religious Exemptions to Title IX

52 Pages Posted: 22 Feb 2016

See all articles by Kif Augustine-Adams

Kif Augustine-Adams

Brigham Young University - J. Reuben Clark Law School

Date Written: February 19, 2016

Abstract

Forty years into the Title IX game, the score is 253 to 0, religious exemptions recognized versus those denied. Almost no one knows the overall score of the game, who has made points, or who is playing. Prior to the Human Rights Campaign’s release of a report in December 2015, relatively few beyond the participants themselves even knew the game was played. Documented religious exemptions to Title IX largely take place in the dark, in private administrative processes rarely made public, under obscure agency standards and policies. The parameters of religious exemptions to Title IX have never been litigated in court or subjected to judicial review. Virtually no scholarship exists on the subject. Religious exemptions to Title IX pose a particularly urgent question given the flood of new exemptions claims focusing on transgender and homosexuality. This analysis is a first, foundational step in evaluating religious exemptions to Title IX.

On its face, a score of 253 and counting, suggests complete and overwhelming victory for one side, the educational institutions claiming religious exemption to Title IX. In reality, however, the lopsided score hides another story, one much more complex and nuanced than the score reflects. Over time, the government agency charged with Title IX enforcement subtly arrogated to itself power and authority to regulate religious exemption to Title IX. As much as victory, the score reveals a subtle erosion of autonomy as religious educational institutions acquiesce to the administrative state by requesting exemption under regulatory procedures rather than claiming inherent exemption under the Title IX statute itself and the Constitution. I conclude that the administrative regulatory procedures for religious exemption to Title IX have largely failed to accomplish the non-discrimination goals of Title IX, to respect religious liberties, or to facilitate a sustainable engagement between these potentially competing values.

Keywords: Religious Exemptions, Title IX, LGBTQ, Religious Liberty, Administrative Law, First Amendment, Constitutional Law

JEL Classification: K10, K20, K30

Suggested Citation

Augustine-Adams, Kif, Religious Exemptions to Title IX (February 19, 2016). Available at SSRN: https://ssrn.com/abstract=2735173 or http://dx.doi.org/10.2139/ssrn.2735173

Kif Augustine-Adams (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

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