Hunter v. United States Dep't of Educ.

• Decision Date: 12 January 2023
• Docket Number: 6:21-cv-00474-AA
• Court: U.S. District Court — District of Oregon
• Parties: ELIZABETH HUNTER, et al, Plaintiffs, v. UNITED STATES DEPARTMENT OF EDUCATION, et al, Defendants, and COUNCIL FOR CHRISTIAN COLLEGES & UNIVERSITIES, et al, Defendant-Intervenors

ELIZABETH HUNTER, et al, Plaintiffs,
v.
UNITED STATES DEPARTMENT OF EDUCATION, et al, Defendants,

and COUNCIL FOR CHRISTIAN COLLEGES & UNIVERSITIES, et al, Defendant-Intervenors

No. 6:21-cv-00474-AA

United States District Court, D. Oregon, Eugene Division

January 12, 2023

OPINION AND ORDER

Ann Aiken, United States District Court Judge

Plaintiffs are students who have attended religious colleges and universities nationwide. Plaintiffs bring this putative class action against the United States Department of Education (“the Department”) and Suzanne Goldberg^[1] in her official

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capacity as Acting Assistant Secretary for the Office of Civil Rights (“OCR”) for the Department (collectively “Defendants”). Plaintiffs challenge Defendants' application of the religious exemption included in Title IX of the Education Amendments of 1972 (“Title IX”) to sexual and gender minority students who attend private religious colleges and universities that receive federal funding. Before the Court is Defendants' Motion to Dismiss (“MTD”); Plaintiffs' Motion to Amend its First Amended Class Action Complaint (“Mot. to Amend”); and Plaintiffs' Motion for Preliminary Injunction (“MPI”). For the reasons explained, Defendant's MTD, ECF No. 56, is GRANTED. Plaintiffs' Mot. to Amend, ECF No. 148, is DENIED. Plaintiffs' MPI, ECF No. 44, is DENIED. William Jessup University, Phoenix Seminary, Western Baptist College/Corbin University, and the Council for Christian Colleges & Universities (“Defendant-Intervenors”) also filed a Joint Motion to Dismiss, ECF No. 137, which is GRANTED in part and otherwise MOOT.

BACKGROUND

I. Statutory Background

Title IX prohibits educational programs or activities receiving federal funds from excluding, denying benefits to, or subjecting to discrimination any person on the basis of sex. 20 U.S.C. § 1681(a). The purpose of Title IX was to “end[] federal subsidies of such discrimination . . . [and] to make certain, in the areas of Federal funding, that taxpayer's dollars were not used to initiate or perpetuate . . . bias and prejudice ....” S. Rep. No. 100-64, at 7, 9 (internal citation and quotation marks omitted). It was likewise intended to protect against sex discrimination. See Cannon v. Univ. of Chi.,

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441 U.S. 677, 704 (1979) (observing that Congress “wanted to provide individual citizens effective protection” against discriminatory practices). One narrow exception to Title IX is when an educational institution “is controlled by a religious organization” with “religious tenets” inconsistent with the application of Title IX. 20 U.S.C. § 1681(a)(3). Congress intended the religious exemption to be narrow lest it “open a giant loophole and lead to widespread sex discrimination in education.” See S. Rep. No. 100-64, at 23.

Regulations implementing Title IX contain a provision setting forth the procedures for an institution wishing to invoke the religious exemption. See 34 C.F.R. § 106.12. In 2020, Defendants amended this regulation in two ways. First, Defendant Department of Education clarified that institutions are no longer required to submit a written statement to the Assistant Secretary for Civil Rights prior to invoking the religious exemption. See Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed.Reg. 30,026, 30,031, 30,475-82 (May 19, 2020). The revised regulation now provides that “[a]n educational institution that seeks assurance of the exemption set forth in paragraph (a) of this section may do so” by submitting a written request to the Assistant Secretary. 34 C.F.R. § 106.12(b) (emphasis added). And, the regulation specifies, “the institution may . . . raise its exemption by submitting in writing to the Assistant Secretary a statement” after the Department of Education “notifies [the] institution that it is under investigation for noncompliance.” Id.

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Second, the Department of Education added a subsection addressing how educational institutions may demonstrate that they are “controlled by a religious organization” within the meaning of the religious exemption. See Direct Grant Programs, 85 Fed.Reg. 59,916, 59,918 (Sept. 23, 2020). The revised regulation now sets forth a list of six criteria, any one of which “shall be sufficient to establish that an educational institution is controlled by a religious organization.” 34 C.F.R. § 106.12(c).

Individuals who allege injuries from discriminatory practices at an educational institution receiving federal funds may proceed via two routes to obtain relief. They can sue the educational institution directly in court. See Cannon v. Univ. of Chic., 441 U.S. 677, 717 (1979). Or they can file an administrative complaint with the Office of Civil Rights. See 34 C.F.R. § 106.81 (incorporating the procedures applicable to Title VI of the Civil Rights Act of 1964, 34 C.F.R. §§ 100.6-100.11); id. § 100.7(b).

Upon receiving a complaint, OCR evaluates it to determine whether the information provided is subject to further processing pursuant to the applicable statutes and regulations and OCR's Case Processing Manual (“CPM”); see ECF 5023, including but not limited to an assessment of the timeliness of the complaint and subject matter jurisdiction over the allegations in the complaint. See CPM Article I. If OCR determines that the complaint does not meet these initial considerations, OCR will dismiss the complaint. Id. § 108. If not dismissed, the complaint is opened for investigation. Id. § 111. If sufficient evidence of discrimination is found, and the institution and the complainant are not able to reach resolution, OCR will either: (1)

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initiate administrative proceedings to suspend, terminate, or refuse to grant or continue financial assistance from the Department to the recipient; or (2) refer the case to the United States Department of Justice for judicial proceedings to enforce any rights of the United States under any law of the United States. See 20 U.S.C. § 1682; 34 C.F.R. § 100.8(a); CPM §§ 601-602. Complainants may at any point in this process bring suit in federal court against the institution, CPM § 111, and have administrative appeal rights in some situations, id. § 307.

II. Lawsuit

A. Parties

Plaintiffs are forty LGBTQ+ people who applied to, attended, or currently attend religious colleges and universities (“religious schools”) that receive federal funding. They allege that their schools have discriminated against them by, among other things, subjecting them to discipline (including expulsion), rejecting their applications for admission, and rescinding their admissions because of their sexual orientation or gender identity. Plaintiffs seek to represent a class of “LGBTQ+ students who attend taxpayer-funded religious colleges and universities that openly discriminate against them in both policy and practice.” First Amended Complaint (“FAC”) ¶ 574.

The Department is the federal agency primarily responsible for providing Federal financial assistance to States, local educational agencies, public and private postsecondary institutions, and other educational entities, and, as such, has primary

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responsibility for administrative enforcement of Title IX. OCR enforces Title IX against recipients of Department funding.

Defendant-Intervenors are three Christian universities and an association of Protestant Christian institutions of higher learning.

B. Procedural History

In March 2021, 33 Plaintiffs filed this action. ECF No. 1. On June 7, 2021, seven new Plaintiffs joined the original 33 in filing their FAC. ECF No. 35. Plaintiffs allege that Defendants facilitate and encourage the religious schools' discrimination by failing to enforce Title IX against the schools based on Defendants' application of the religious exemption. The FAC contains five causes of action-a Fifth Amendment claim alleging violations of substantive due process and equal protection; two claims under the First Amendment alleging violations of the Establishment Clause and deprivations of freedom of religion, speech, assembly, and association; a claim under the Administrative Procedure Act (“APA”) challenging 2020 amendments at 34 C.F.R. §§ 106.12(b) and (c); and a claim under the Religious Freedom Restoration Act. FAC at 73-86.

Between June and August of 2021, thirty-five of the Plaintiffs filed Title IX administrative complaints with OCR. Swain Decl. Ex. A-D, ECF No. 61. Then, on August 5, 2021, Plaintiffs moved for a temporary restraining order (“TRO”) and preliminary injunction, ECF No. 44. Defendants moved to dismiss the FAC. ECF No. 56. Plaintiffs moved to amend their TRO/MPI. ECF No. 75.

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The Court issued its ruling with respect to Plaintiffs' request for a TRO only, reserving a ruling on Plaintiffs' MPI until a hearing could be held. The Court denied Plaintiff's request for a TRO, holding that it “cannot find that plaintiffs have shown a likelihood of success on the merits of their” claims. Order on TRO at 6, ECF No. 88.

On November 4, 5, and 6, the Court held an evidentiary hearing on Plaintiffs' MPI. See ECF Nos 140-142. The parties submitted briefing summarizing the arguments and evidence at the hearing. ECF Nos. 150-152; 159-161.

On December 2, 2021, Plaintiffs moved to amend the FAC under Federal Rule of Civil Procedure 15. Plaintiffs' proposed Second Amended Class Action Complaint (“proposed SAC”) contains changes which (1) add factual allegations that Plaintiffs filed administrative complaints with the Department of Education Office of Civil Rights; (2) adjust the prayer for relief “for greater consistency with the relief requested in” the MPI; and (3) include eight new plaintiffs. Mot. to Amend at 3-4.

Plaintiffs' FAC does not add new causes of action and the proposed factual allegations describing the filing of Plaintiffs' administrative claims with the Office for Civil Rights are matters fully considered by the parties in...