Title IX, which prohibits sex discrimination in federally funded schools, requires that schools act to prevent discrimination and harassment on campus. Today a coalition of 19 states and the District of Columbia, led by Oregon Attorney General Ellen Rosenblum, announced that the states have filed an amicus (also known as a friend of the court) brief with the U.S. Ninth Circuit Court of Appeals in a class-action case entitled Hunter v US Department of Education.
The brief supports arguments that a 2020 rule adopted during the tail end of the Trump administration is invalid. The lawsuit was brought on behalf of students opposing the Department of Education’s implementation of a new regulation governing Title IX’s religious exemption from anti-discrimination laws. The new regulation significantly weakened protections from discrimination on religious grounds.
When Congress enacted Title IX, it included a narrow exemption for schools controlled by religious institutions that have tenets incompatible with Title IX. However, during the Trump administration, the Department of Education used administrative rule-making to vastly expand this narrow religious exemption.
One such rule, adopted in August 2020, makes it more difficult for prospective students to tell which schools are claiming a religious exception. The DOE eliminated the requirement that educational institutions advise the Office for Civil Rights in writing if they wanted to invoke a religious exemption. As a result, schools could invoke the exemption, without notice, in response to a student’s complaint.
“During the Trump administration his Department of Education gutted protections for women, members of the LGBTQ+ community and other classes of students that had been in place for four decades,” said Attorney General Rosenblum. “Title IX needs to be strengthened, not systematically weakened. Students ought to know before they get to campuses whether their academic institutions will protect their rights or undermine them.”
As the brief states, students “…should not have to wait until after they become a victim of discrimination to learn that their school considers itself exempt from Title IX’s anti-discrimination, anti-harassment, and anti-retaliation rules. Nor should schools be allowed to wait to assert their exemption from Title IX until after a complainant comes forward with an allegation.”
The amicus brief was led by Oregon Attorney General Rosenblum, and joined by the Attorneys General of California, Colorado, Connecticut, the District of Columbia, Delaware, Hawaii, Illinois, Maine, Massachusetts, Maryland, Michigan, Minnesota, New Jersey, Nevada, New York, Pennsylvania, Rhode Island, Vermont, and Washington.
