Bad Apples: The “Right to Discriminate” in Schools

From Pre-K to college, schools and teachers across the country are demanding—and often receiving—the right to discriminate against LGBT and female students.

In Texas, two daycare workers were apple-256262_1280recently fired after they refused to call a 6-year-old transgender boy by his preferred name, and referred to him as a “girl” despite his and his parents’ wishes. In response, the workers filed wrongful termination complaints with the Equal Employment Opportunity Commission (EEOC) alleging, among other things, that the daycare center had fired them because of their religious beliefs. One of the workers explained that while she has “nothing against anyone else,” she believes that she and her co-worker “should be able to stand up for [their] rights without being terminated for it.” The case is being brought by attorney Andy Taylor, who recently sued Houston’s mayor over issues related to the city’s Equal Rights Ordinance.

The daycare workers seem to believe that laws which criminalize religious discrimination also give them the right to misgender their young enrollees with impunity. This is a fundamental misunderstanding of civil rights law. Under federal law, certain employees are entitled to workplace accommodations related to their religious beliefs. However such accommodations must be reasonable and cannot cause more than a minimal burden on the operations of the employer’s business.

Any accommodation that would permit an employee to ignore a customer and his parents’ wishes regarding his gender identity is not reasonable, regardless of the employee’s religious beliefs. Such actions, which might themselves be considered discriminatory and highly offensive, could severely damage the daycare center’s reputation, disrupt relationships among staff, and cost the center business.

But there’s another kind of religious exemption that is far more troubling than the Houston case, which could get dismissed by the EEOC. Increasingly, religious colleges and universities are taking advantage of an exemption in another area of civil rights law, and requesting government permission to discriminate against LGBT and female students while still receiving federal money.

Title IX, passed in 1972, prohibits sex discrimination by educational institutions that receive federal funding. Since this time, the law has been interpreted and expanded to include a range of discriminatory actions. A 1988 Amendment to Title IX, called the Civil Rights Restoration Act, incorporated an “abortion neutrality” provision which clarified that while schools did not need to provide benefits related to abortion, they also could not discriminate based on a student’s decision to seek an abortion. In 2014, as part of a guidance document on sexual violence, the Department of Education indicated that the requirements of Title IX “extend[] to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.” And while marital status discrimination is not covered by the law per se, courts have applied Title IX to situation in which schools single out unmarried mothers or pregnant women for punishment.

There is a significant loophole in Title IX, however, in the form of religious exemptions. The statute does not apply to any “educational institution which is controlled by a religious organization if the application of [the prohibition of sex discrimination] would not be consistent with the religious tenets of such organization.”

Remember that this provision doesn’t just give religious schools the right to discriminate against women and LGBT students—it gives them the right to do so and still receive taxpayer money. That means women and gender non-conforming people are paying to support educational institutions that can actively discriminate against them.

This isn’t a mere theoretical harm. Dozens of colleges and universities receiving millions of taxpayer dollars have already received exemptions from Title IX’s requirements. The Column, an LGBT media organization based in Minnesota, has been compiling and tracking these requests.

The most recent educational institute to attract media attention for its successful exemption request is Carson-Newman University in Tennessee. The University requested the ability to ignore provisions of Title IX which would otherwise prevent them from “engaging in recruiting and admissions under a policy which called for the consideration of an applicant for admission’s sexual orientation, gender identity…marital status, past and present practices regarding marriage, sex outside marriage, pregnancy, and abortion.”

The university claims that despite its request, it won’t discriminate. In interviews, the school’s president seemed to indicate that the exemption request was made solely at the advice of its legal counsel. That assurance is of little comfort, however, considering the University now has the government’s go-ahead to collect federal funds while banning or punishing LGBT students and students who become pregnant outside marriage or have an abortion.

Explicit government approval of, and funding for, institutions that discriminate based on religious beliefs raises serious Establishment Clause concerns. While Supreme Court doctrine has widely upheld government support for religious schools, these cases have made sure to emphasize the essentially secular nature of the government’s actions. For example, the Court has upheld government school-aid programs that distribute non-religious materials on a neutral basis to both public and private schools. The Court has found that such programs are acceptable, as they neither indoctrinate pupils nor define recipients in reference to religion.

In contrast, the Title IX exemption is neither neutral nor secular. It explicitly exempts religious schools, and very few other institutions, from a major civil rights protection. This exemption comes at the expense of LGBT and female students and taxpayers. There are important reasons that antidiscrimination laws apply broadly, and we should be extremely wary of exemptions that limit their reach—especially when taxpayer dollars are at stake.