Today is the last day to comment on the OCR’s proposed Title IX regulations. I submitted my comment just now, and I was the 96,841st person to do so. Wow!
If you were waiting for the last minute like I was, here is the link to the docket, which includes the proposed regulations, the comments received, and the form for submitting your own.
If you are curious about my comment, here it is:
As a law professor, I teach, research, and write about Title IX. In that capacity I have had the opportunity to sign on to some of the comments that are already submitted to this record, but I write separately to comment specifically on the proposed revision to 106.12(b), which provides an exemption for religious institutions. The proposed regulation not only permits educational institutions to decide for themselves whether they must comply with Title IX, but to do so in obscurity.
I acknowledge that religious institutions have First Amendment rights not to be compelled by the government into compromising their religious tenets. This is why Title VII, for example, exempts religious institutions from the prohibition on religious discrimination, and why courts have interpreted workplace discrimination statutes to contain an exception for religious institutions when it comes to the employment of those they consider ministers.But in contrast to laws that impose mandatory requirements on employers—laws like Title VII, and the ACA—Title IX doesn’t compel institutions of any kind, religious or otherwise, to do anything. As Spending Clause legislation, Title IX proposes a voluntarily exchange of federal funding for an educational institution’s promise not to discriminate. Thus its intrusion on religious freedom is minimal, as religious institutions are as free in a world with Title IX as they would be in a world without it, to do whatever they want as a matter of faith. It’s only when they agree to accept the financial support of the government that they undertake an obligation not to discriminate on the basis of sex.With this in mind, Title IX’s exemption for religious institutions is already more protective of religious freedom than the Constitution requires. It generously permits religious institutions to accept federal funding even without fully complying with its nondiscrimination mandate. To receive this special treatment, the existing regulation simply requires that these institutions register their exemption in advance.The proposed regulation extends this special treatment for religious institutions to the detriment of third-parties, prospective students and employees. At least the current approach allows students and employees to use public religious exemption records to determine prior to matriculating or accepting employment to determine whether their institution has opted out of Title IX. In fact, given that Title IX permits the government to provide financial support to religious institutions whose practices would otherwise violate the law, the only way for prospective students and employees of such institutions to protect themselves from discrimination is to arm themselves with information and use it to make decisions about where to enroll or accept employment. The proposed regulation would eliminate even this modicum of protection that such transparency allows.On the other hand, from the standpoint of a religious institution, the burden of complying with the existing religious-exemption regulation is minimal. If an aspect of Title IX truly conflicts with an institution’s religious tenet, it is not difficult for the institution to articulate this conflict in advance. The existing religious-exemption regulation does not require institutions to defend their religious tenets and it protects institutional autonomy to define the nature of the conflict between those tenets and Title IX. Nor does it require religious institutions to advertise or otherwise publicize the scope of their Title IX exemption. Requiring them to put it on the public record in advance is the very least the law can do to protect the rights of students and employees in the face of special treatment that allows religious institutions to discriminate with federal funds. The current religious-exemption regulation should not be modified in the manner OCR has proposed.