New legislation in Congress would stop federal judges from applying Title IX sex discrimination rules on religious schools or churches because of their tax-exempt status.
The move follows federal district court rulings in Maryland and California that a tax exemption equals a cash payment that subjects private religious schools to Title IX of the Education Amendments Act of 1972.
Title IX protects people from discrimination based on sex at places that receive federal financial assistance. It covers sexual harassment, failure to provide equal athletic and education opportunities and discrimination based on pregnancy.
“Due to multiple, radical judicial decisions targeting religious schools, Congress must now codify that an organization holding tax-exempt status is not to be considered as a recipient of federal financial assistance,” said Rep. Greg Steube, Florida Republican, who sponsored the “Safeguarding Charity Act” in the House.
He said the judicial system is being “weaponized” against America’s houses of worship, religious schools and other nonprofit organizations.
Sen. Marco Rubio, who sponsored it in his chamber, said the recent rulings threatened churches, schools and charities that are “crucial to our communities.”
“I remain concerned by recent court decisions that could subject these organizations to burdensome federal regulations simply because they are tax-exempt,” said Mr. Rubio, also a Florida Republican.
The legislation, which faces an uphill battle in the Democratic-run Senate, would clarify that tax exemption is not included in legal definitions of federal financial assistance, contrary to the finding of the federal judges in Maryland and California.
The Maryland case, Buettner-Hartsoe v. Baltimore Lutheran High School Association, involved claims by former students that the association’s Concordia Preparatory School didn’t adequately address complaints of sexual assault and verbal sexual harassment. The school said it did not accept federal money and was not subject to Title IX.
In the California case, a female student on the varsity football team at Cuyama Valley High School claimed her Title IX rights were violated when Valley Christian Academy refused to let her play in games between the two schools’ teams.
The student, identified as E.H., tried out for the football team and made the cut as a wide receiver. She was the only girl on the team.
She claimed the rival private school violated her Title IX rights because its coaches and school officials expressed public disapproval upon discovering she was playing and later barred her from games.
E.H.’s lawyers argued the school came under the civil rights legislation because it was tax-exempt and had accepted a Paycheck Protection Program loan during the pandemic.
Only federal financial aid recipients are subject to Title IX claims, although there are provisions for religious exemptions.
In the Maryland case, a federal district court cited a 1983 Supreme Court ruling, Regan v. Taxation With Representation, where the court found tax-exempt status under Section 501(c)3 was “a form of Congressional subsidy and the equivalent of a cash grant.”
The California court relied on the Christian school’s acceptance of a PPP loan — since forgiven — and its tax-exempt status, finding each gave the school “a federal financial benefit” requiring Title IX compliance.
The 4th U.S. Circuit Court of Appeals in Richmond, Virginia, will hear arguments in the school’s appeal of the district court ruling on Thursday. The California case was settled after the 2022 ruling and was not appealed.
The precedent set by the two cases and a pending ruling in a similar case against Hillsdale College in Michigan alarmed the lawmakers.
“These organizations should not be subjected to a series of laws and regulations triggered by [the] receipt of federal financial assistance,” Mr. Steube said.
Michael Schuttloffel, executive director of the Council for American Private Education, said religious schools and other nonprofits need protection from such “outlier court decisions.”
“Ensuring that tax-exempt status is recognized as being distinct from federal financial assistance is critical for preserving the ability of private K-12 schools to continue to serve families and communities,” said Mr. Schuttloffel, whose organization represents networks of private schools covering approximately 80% of the nation’s 32,000 private schools.
Speaking with The Washington Times, Mr. Schuttloffel said he was surprised the 2022 rulings didn’t get more attention given the potential impact. He speculated this was perhaps due to expectations that this interpretation would be “smacked down” on appeal.
“It is such a departure from what has been accepted policy on this issue,” he said.
• Mark A. Kellner can be reached at mkellner@washingtontimes.com.
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