The California state assembly is seeking to weaponize Title IX, the Higher Ed Act's anti-discrimination rule, against religious colleges. The proposed legislation, SB 1146, seeks to require religiously affiliated colleges and universities to advertise their exemption from Title IX, and would expose them to costly Title IX litigation despite their traditonal exemption from it.
"This bill would," the text reads, "except as provided, specify that a post secondary educational institution that is controlled by a religious organization and that receives financial assistance from the state or enrolls students who receive state financial assistance is subject to that prohibition and violation of that prohibition may be enforced by a private right of action."
The bill, if law, would allow California to deny tuition assistance to students attending schools found in non-compliance with LGBT protections, particularly smaller religious schools lacking large endowments, effectively denying them a continued ability to attend the school of their choice.
But leaders at religiously affiliated institutions of higher learning are fighting back.
Nearly 150 Muslim, Jewish, Catholic, and Protestant signatories—among them, university presidents, priests and professors—have lent their names to a statement entitled "Protecting The Future Of Religious Education" published by The Ethics and Religions Liberty Commission of the Southern Baptist Convention.
Though it purports to eliminate discrimination, Senate Bill 1146 results in its own form of discrimination by stigmatizing and coercively punishing religious beliefs that disagree on contested matters related to human sexuality. If SB 1146 were to pass, it would deny students' ability to participate in state grant programs—programs that exist to help low-income students, and which are overwhelmingly used by racial minorities—at schools that are found in violation of the bill. Moreover, it would severely restrict the ability of religious education institutions to set expectations of belief and conduct that align with the institution's religious tenets. While we do not all agree on religious matters, we all agree that the government has no place in discriminating against poor religious minorities or in pitting a religious education institution's faith-based identity against its American identity... This legislation puts into principle that majoritarian beliefs are more deserving of legal protection, and that minority viewpoints are deserving of government harassment. Legislation of this nature threatens the integrity not only of religious institutions, but of any viewpoint wishing to exercise basic American freedoms, not least of which is the freedom of conscience.
And the law, as the statement points out, would also threaten the very foundation of our liberal society.
The California Assembly has proposed legislation that is harmful to the free exercise of religion in higher education. In particular, the legislation disadvantages low-income minority students who want an education at private religious colleges. Though it purports to eliminate discrimination, Senate Bill 1146 results in its own form of discrimination by stigmatizing and coercively punishing religious beliefs that disagree on contested matters related to human sexuality. If SB 1146 were to pass, it would deny students' ability to participate in state grant programs—programs that exist to help low-income students, and which are overwhelmingly used by racial minorities—at schools that are found in violation of the bill. Moreover, it would severely restrict the ability of religious education institutions to set expectations of belief and conduct that align with the institution's religious tenets. While we do not all agree on religious matters, we all agree that the government has no place in discriminating against poor religious minorities or in pitting a religious education institution's faith-based identity against its American identity. This legislation puts into principle that majoritarian beliefs are more deserving of legal protection, and that minority viewpoints are deserving of government harassment. Legislation of this nature threatens the integrity not only of religious institutions, but of any viewpoint wishing to exercise basic American freedoms, not least of which is the freedom of conscience.
This may sound familiar, and for good reason: in Grove City College v. Bell, the Supreme Court ruled that Grove City College, a conservative, private college in Pennsylvania, was subject to Title IX, in part, because it accepted students whose tuition was partly funded by federal financial aid. The ruling was a crack in the dam, and Congress followed suit with a more liberal expansion of Title IX a few years later, which would have required Grove City to comply with Title IX on an institution-wide basis. Grove City responded by refusing to accept federal financial aid of any kind.
Were SB 1146 to become law in California, the same would occur, as Patrick Reilly of the Cardinal Newman Society observes:
Should this bill become law, I see no option for faithful Catholic colleges but to withdraw from the Cal Grants program. The campaign to force a radical 'gender ideology' and sexual immorality on religious colleges could shove them into second-class status... And the campaign likely will not end here; we can expect efforts in California and elsewhere to pass even more draconian laws against religious schools and charities... Worse — and this is what I fear most — the persecution will tempt California's less faithful Catholic colleges to capitulate and further erode the foundations of Catholic education.
California is a laboratory of democracy when it comes to left-leaning proposals that, if successful, are often adopted elsewhere. And for many private religious institutions, their future is at stake.