Leaked Title IX Rule Would Allow Religious Schools to Discriminate—Without Saying Why

Advocates expressed alarm over the leaked Title IX rule proposal, saying it will only end up hurting survivors of campus sexual assault.

[Photo: Betsy DeVos]
Betsy DeVos has long supported policies allowing expansion of religious doctrine within the educational system. Mark Wilson/ Getty Images

A leaked copy of U.S. Department of Education (DOE) Secretary Betsy DeVos’ proposed rule for handling campus sexual assault allegations appears to reveal a plan to make exemptions to Title IX anti-discrimination laws easier for religious institutions.

The New York Times in August obtained a copy of the coming rule, which has yet to be publicly released, reporting that it would “would bolster the rights of students accused of assault, harassment, or rape; reduce liability for institutions of higher education; and encourage schools to provide more support for victims.” A copy of the draft rule, posted online by the Association of Title IX Administrators (ATIXA) and reviewed by Rewire.News, shows that it may also give broad license to religious institutions to claim exemptions from Title IX regulations, which protects against sex-based discrimination in education. ATIXA believes the document is authentic.

In order to bypass the federal regulations, religious institutions must currently send a letter to the DOE explaining which Title IX provisions they are claiming an exemption from, and the religious rationale behind the request. But the new rule would wipe away that requirement, even if the institution is the subject of an ongoing DOE investigation.

The proposal claims that requiring a letter in advance could be “confusing or burdensome,” and seeks “to clarify that an educational institution may—but is not required to—seek assurance of its religious exemption by submitting a written request for such an assurance to the assistant secretary.”

According to legal experts, waiving the letter system for religious exemptions could open the door for schools to abuse the current system. “As it’s written in the leaked draft, religiously affiliated schools could simply assert a faith-based objection to complying with Title IX and the government would take them at their word,” said Jessica Mason Pieklo, vice president of law and the courts at Rewire.News in an interview. “While the letter system is far from perfect, it at least provides some check on institutions from abusing the Title IX religious exemption. The Trump administration is proposing removing even that modest check.”

The rule goes on to state that religious institutions can invoke exemptions at any time, even if they are subject to an official investigation. 

DeVos, a graduate of religious schools, has long supported policies allowing expansion of religious doctrine within the educational system, such as vouchers for religious schools and the rewriting of student aid rules pertaining to religious institutions. At an event in 2001, she said, “Our desire is … to confront the culture in which we all live today in ways that will continue to help advance God’s Kingdom, but not to stay in our own faith territory,” according to audio obtained by Politico in 2016.

The impact of this rule on students could be vast and immediate. As of the middle of June, 277 religious institutions had been granted religious exemptions to Title IX rules. Several religiously-affiliated colleges and universities have undergone DOE investigations related to sexual violence over the past several years. A searchable list of ongoing Title IX investigations by the department related to sexual violence includes 423 elementary, high school, and secondary educational institutions. Among those investigations are numerous religious institutions, such as Notre Dame University and Valor Christian College in Ohio, which could ostensibly opt-out mid-investigation and avoid penalties for violating Title IX.

The DOE did not respond to requests for comment on the leaked draft rule.

Advocates expressed alarm over the proposed rule draft, saying it will only end up hurting survivors. “The Department of Education’s leaked rule is out and it’s even worse than previously reported,” End Rape on Campus Executive Director Jess Davidson said in a statement, suggesting the proposed rule is designed to reduce the number of sexual assault investigations by colleges and universities. “It would not only sweep rape and harassment under the rug and diminish reporting, but it would allow schools to opt out of Title IX enforcement entirely for religious reasons, denying entire student bodies their civil rights.”

Because Title IX is a sprawling law concerning more than sexual assault on campus, allowing wholesale religious exemptions could potentially turn into a nightmare for LGBTQ students or those taking birth control.

A 2016 request for religious exemption by Appalachian Bible College (ABC) in West Virginia sought broad exemptions to Title IX in order to be able to ban students from transitioning their genders, engaging in “sexual activities with members of the same sex,” and accessing abortion services. Additionally, the school asked for DOE permission to dismiss unmarried pregnant students from the ABC community and delineated several faculty and administration positions as male-only. The letter system allowed prospective students and staff to know they would lack protections at ABC before applying. Now DeVos proposes ending even that small advance notification, potentially leaving large swaths of students in the lurch.

“The proposed rules would allow schools, that are looking to punish and push out students that are queer or using birth control, to be exempt from Title IX without ever clarifying their reasoning. Not requiring schools to submit a letter requesting exemption to Title IX is a change in policies and procedures that have existed for 46 years,” Sage Carson, manager of Know Your IX, a survivor-led advocacy group that seeks to end sexual assault and dating violence in schools, said in an email to Rewire.News. “These changes may discourage schools from clarifying if and when they will discriminate and/or punish a students for coming out, or disclosing they are using birth control. These changes will harm queer students and limit their knowledge of when a school may take disciplinary action against them for disclosing their sexuality or gender identity.”