Conservatives frequently endorse legislation limiting the individual choices of welfare recipients—by, say, barring them from buying certain food with welfare dollars. The logic behind this philosophy is straightforward: When the government gives you money, the government gets to dictate how you spend it.
You might think that principle would extend to private Christian colleges that accept federal funds. The deal here should be simple: The universities maintain their religious identities and teachings, but they must follow certain ground rules since they are partly financed by taxpayers. One basic stipulation: Colleges that receive federal money are supposed to comply with Title IX—which, as interpreted by the Department of Education, bars discrimination on the basis of sex, including sexual orientation and gender identity.
This agreement held firm for decades: Since Congress passed Title IX in 1972, relatively few colleges have asked for a waiver permitting them to resume sex discrimination on religious grounds. Recently however, that number has skyrocketed: Forty-three colleges have applied for such exemptions in 2015 alone, and 22 of those have already been approved. (The exemption-granting process is inexcusably opaque; BuzzFeed’s Dominic Holden deserves great credit for squeezing these numbers out of the DOE.) The number of colleges applying for, and receiving, exemptions seems to have spiked when the DOE got serious about enforcing rules against anti-gay, anti-trans discrimination.
Holden notes that the 2015 applications “appear to become increasingly similar in their language and formula.” That is almost certainly because a handful of anti-LGBTQ religious advocacy groups are leading the charge against Title IX, helping Christian colleges draft waiver requests so they can freely discriminate against LGBTQ students and faculty. I asked Ian Thompson, legislative representative for the American Civil Liberties Union, what he made of the uptick in waivers.
“Simply put,” he told me, “Title IX’s religious exemption is far too broad. It affords the Department of Education almost no discretion to deny a waiver, even to schools that receive significant federal funding.”
Thompson also criticized the DOE’s refusal to freely publicize which schools receive waivers.
“While legislation is needed to narrow the sweeping scope of the exemption,” he said, “it should not take FOIA requests or investigative journalism for LGBT students and their families to be informed of the kinds of discrimination they can be subjected to by their school, simply based on who they are.”
That’s true, of course—but it’s also worth asking whether the exemption should exist at all. Christian colleges have every right to discriminate against students and faculty; Title IX only asks that they do so with their own money. Taxpayers shouldn’t be forced to subsidize religious discrimination. That’s the kind of thing our wall of separation between church and state was designed to prevent. And the conservative Christian legal establishment’s drive to legalize as much publicly funded discrimination as possible demonstrates yet again that its vision of “religious freedom” involves curtailing liberty for the rest of us.