In what is at least a short-term victory, a lawsuit by the College of the Ozarks will move forward after the 8th Circuit Court of Appeals agreed to accept the religious freedom case on an expedited basis.

In May, a federal judge denied a request by the private Christian college located in Missouri for a preliminary injunction, which would have halted a Biden administration rule that would force the college to allow men in women’s dorms and vice versa.

Federal District Court Judge Roseanne A. Ketchmark, a Barack Obama appointee, denied the motion for preliminary injunction filed by the college and dismissed the case, reasoning that since the new rule was not “final,” and that since there have not yet been any claims of discrimination, nor any injury to the college so far, she lacked authority to hear the case — and the college lacked standing to bring it.

“Private, faith-based colleges have the constitutionally protected freedom to separate males and females in dorm rooms, showers, and locker rooms. Until recently, that commonsense policy has been widely accepted and respected,” Alliance Defending Freedom Senior Counsel Julie Marie Blake said in a release. “President Biden’s directive is targeting religious schools, organizations, and churches simply because of their beliefs about marriage and biological sex. We are pleased the 8th Circuit granted our request to expedite this case, which has important ramifications for College of the Ozarks and others who seek to freely operate according to their faith tradition and beliefs.”

Alliance Defending Freedom, which is representing College of the Ozarks, is a non-profit legal organization that defends religious freedom, free speech, and the sanctity of life.

The back story

ADF and the college sued the president of the United States, as well as the U.S. Department of Housing and Urban Development, HUD Director Marcia L. Fudge, and Acting Assistant Secretary for Fair Housing and Equal Opportunity Jeanine M. Worden as defendants in a federal lawsuit to prevent implementation of an executive order signed by Biden on the first day of his presidency. The order prohibits discrimination by federal agencies on the basis of gender identity, as well as a HUD directive under the fair housing act requiring aggressive prosecution of alleged discrimination.

The memorandum says HUD has interpreted prohibitions in the Fair Housing Act against discrimination based on sex or sexual orientation to include gender identity. However, the act does not — at any point — mention “gender identity” as protected under the FHA.

The lawsuit — noting several First Amendment violations — alleges the directive is a “substantive regulation” under the law, and that both Biden and HUD have violated federal laws regarding how regulations may be promulgated.

“This directive was issued without any notice or comment opportunities for the public,” Ryan Bangert, ADF Senior Counsel and Vice President for Legal Strategy said in a phone interview at the time. “It was issued outside the normal process that should be followed under the Administrative Procedure Act.

Because there was no notice of the directive — nor opportunity for public comment, the lawsuit argues — the regulation is illegal on its face and should be set aside.

The lawsuit also noted First Amendment violations based on “sincerely held beliefs” of the plaintiffs.

As they had with Judge Ketchmark, ADF filed a motion for preliminary injunction to halt any enforcement of the new rule by the Department of Housing and Urban development, however, while accepting the case for oral argument in November, the court denied the injunction stating: “… the government recites that the School ‘has an exemption under Title IX, including for its housing policies . . ., and HUD has never filed a charge of discrimination under the FHA against a college for a housing practice or policy that was specifically exempted by the Department of Education or Title IX.’ The government further states that ‘the Memorandum does not require plaintiff or other religious colleges to change their behavior or choose between abandoning their housing policies or ‘risk[ing] crippling government penalties.’”

Well, not quite …

In point of fact, college dormitories are considered public housing under the Fair Housing Act, and the February memorandum specifically states: “Effective immediately, FHEO shall accept for filing and investigate all complaints of sex discrimination, including discrimination because of gender identity or sexual orientation, that meet other jurisdictional requirements. Where reasonable cause exists to believe that discrimination because of sexual orientation or gender identity has occurred, FHEO will refer a determination of cause for charge by HUD’s Office of General Counsel. Moreover, if discrimination because of gender identity or sexual orientation occurs in conjunction with discrimination because of another protected characteristic, all such bases shall be included within the complaint, investigated, and charged where reasonable cause exists. Similarly, FHEO shall conduct all other activities involving the application, interpretation, and enforcement of the Fair Housing Act’s prohibition on sex discrimination to include discrimination because of sexual orientation and gender identity.”

So while it is true that to this point HUD has not, to date, filed a charge of discrimination against a college for housing practices, it is not true that the memorandum doesn’t require religious colleges to change their housing practices, nor does it preclude charges being filed in the future — which is why the lawsuit was filed.

Additionally, the court references “exemption under Title IX” which faith-based institutions do enjoy, however, that applies to such things as requiring students to adhere to codes of conduct, which might include such things as sexual orientation or gender identity, but — as dormitories are under HUD jurisdiction, not the jurisdiction of the Department of Education — the Title IX exemption does not apply to housing.

Moreover, that very exemption is also the subject of a federal lawsuit.

A class-action suit filed in March in the federal court for the Western District of Oregon could end the Title IX religious exemption for all private, faith-based universities in the country — or force them to stop accepting any federal aid at all.

Hunter v. U.S. Department of Education, filed by “Religious Exemption Accountability Project,” seeks to strip longstanding religious protections from Title IX — a law that has promoted diversity — including religious diversity — in higher education for nearly 50 years. 

“The government’s Directive jeopardizes the College’s speech, its biologically separate dorms, and the students who live there—all without public notice and comment, or any consideration of religious exemptions, statutory authority, or free speech…,” ADF’s opening brief states. “The College faces a credible threat of enforcement because the Directive repeatedly mandates ‘full enforcement,’ laments that full enforcement of its new legal standard has never yet occurred, and says nothing about religious or free-speech protections. This threat forces the College to choose between harming its students and violating its religious beliefs, or risking massive fines, investigatory burdens, lawsuits, and criminal penalties.”

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