The College Fix

The U.S. Court of Appeals for the Ninth Circuit recently ruled against LGBT activists who sought to prevent religiously affiliated colleges from invoking faith-based exemptions to federal anti-discrimination laws.

The Ninth Circuit, concurring with an earlier decision by the U.S. District Court for the District of Oregon, ruled on Aug. 30 that granting religious exemptions “substantially relates to the achievement of limiting government interference with the free exercise of religion.”

“This is just a recognition of the foundational truth of this nation,” said Chris Schandevel, an attorney at Alliance Defending Freedom, in a phone interview with The College Fix. ADF represented the religious schools in this case.

“The Constitution exists to protect the religious freedom of all believers, the freedom to live out that belief,” Schandevel said.

“Tolerance has come to mean that you have to actively celebrate and approve my choices. If you don’t tolerate me, I’m gonna deny you the chance to live our your beliefs, and that is essentially what the plaintiffs are saying to Christian schools,” he said.

The court affirmed that federal funding of religious schools— much like the longstanding practice of giving tax exemptions to churches— does not violate the First Amendment’s ban on laws “respecting an establishment of religion.”

The Ninth Circuit also stated that legal precedents demonstrate “a continuous, century-long practice of governmental accommodations for religion that the Supreme Court and our court have repeatedly accepted as consistent with the Establishment Clause.”

“The examples provided by the Department demonstrate that religious exemptions have ‘withstood the critical scrutiny of time and political change,’” reads the decision.

Schandevel told The Fix that if the court had ruled in favor of the plaintiffs, religious schools would become too expensive for low-income students to attend.

“As enrollment drops, more religious schools will have to close down, and LGBT students who do wish to abide by the sexual ethics at these schools will be denied a chance to get a quality education there,” Schandevel said.

In Hunter v. U.S. Department of Education, and LGBT activist group called the Religious Exemption Accountability Project sought to prevent students at private religious colleges that subscribe to biblical views about sex from accessing tuition grants, student loans, and other forms of federal financial aid, as previously reported by The College Fix.

The plaintiffs argued that exemptions to Title IX, which bars “any education program or activity” that discriminates based on sex from receiving federal funding, amount to an exclusive subsidy to religious groups.

The lawsuit comes shortly after the Supreme Court expanded the meaning of sex-based discrimination in federal civil rights law to include discrimination on the basis of sexual orientation and gender identity.

MORE: Supreme Court rules in favor of injunctions blocking Biden’s pro-transgender Title IX rewrite

REAP further argued that religious exemptions to Title IX violate the Constitution’s guarantee of equal protection.

The group also stated that it aims to “end the sexual, physical, and psychological abuses perpetrated under the religious exemption to Title IX.”

The lawsuit claims a 2020 regulation from the Department of Education has exacerbated these abuses. The regulation clarifies that colleges are not required to submit a written statement to the Assistant Secretary for Civil Rights before claiming a Title IX exemption.

However, the plaintiffs never argued on appeal that overturning the regulation would “alter…the behavior of the religious schools,” leading the Ninth Circuit to uphold it.

REAP’s website contains an FAQ page explaining why LGBTQ students decide to attend religious colleges despite conflicting values.

“College is a time of exploration, independence, and self-discovery,” the page reads. “Students often do not know they are LGBTQ until their college years and are confronted with anti-LGBTQ policies when they feel the need to come out or are outed by others.”

Erin Green, director of REAP, is a “queer, non-binary, and Latinx biblical scholar” who is “best known for their [sic] work in organizing and supporting LGBTQIA+ students at non-affirming Christian university campuses and in religious spaces,” according to her biography.

Green did not respond to a request from The College Fix seeking comment on her activism.

Associate director Crystal Cheatham appeared in Essence magazine’s 2018 “Woke 100 Women,” a list of predominantly African American women who are “proven change agents, shape-shifters and power players.”

The list includes Brittney Cooper, a Rutgers University professor, who said that white people are “so morally and spiritually bankrupt” and suggested taking “these motherfuckers out.”

REAP’s “about page” thanks Seattle-based law firm Perkins Coie for taking its case pro bono.

“Perkins Coie has generously donated over eight hundred thousand dollars of legal services in pursuit of justice for LGBTQIA+ students affected by discrimination at private, religious colleges,” the page says.

Perkins Coie is known for representing the Democratic National Convention and the presidential campaigns of Barack Obama, Hillary Clinton, and Joe Biden.

Time magazine describes Perkins Coie as the Democratic Party’s “go-to firm.”

MORE: LGBT group loses effort to strip religious liberty from colleges

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