The Department of Justice (DOJ) is opposed to a motion from the Council for Christian Colleges & Universities (CCCU) to intervene in a class action lawsuit brought by current and former LGBTQ students at Christian institutions of higher education. The DOJ says the motion to intervene made the—false—assumption that the Biden administration’s interests and those of the Christian institutions are not aligned.
“In an attempt to establish that their interests will not be adequately protected,” said the DOJ in a June 8 court filing, “the Proposed Intervenors cite a variety of statements and actions taken by the current Administration regarding protecting LGBTQ+ individuals from discrimination in a variety of contexts and then leap to concluding that ‘the current defendants will not defend the Religious Exemption as vigorously as Religious Schools’…or may even be ‘openly hostile’ to defending the Religious Exemption as applied to LGBTQ+ students.”
The truth is, said the DOJ, that the federal government has a vested interest in defending the religious exemptions being challenged in the suit.
LGBTQ Students Bring Lawsuit
In Hunter v. U.S. Department of Education, filed March 29, 2021, 33 current and former LGBTQ students at Christian colleges and universities said their schools should be ineligible for federal funding because of anti-LGTBQ discrimination. The plaintiffs argue that the schools have discriminated against them as a result of the religious exemptions to Title IX that allow Christian institutions to create policies around sexuality and gender.
The Religious Exemption Accountability Project (REAP) filed the lawsuit on behalf of the plaintiffs, and the suit names 25 Christian institutions, including Liberty University, Baylor University, and Azusa Pacific University. The following article from ChurchLeaders offers more background on the suit: UPDATE: Religious Colleges Face a Lawsuit Related to Protections of LGBTQ Students.
On May 12, 2021, CCCU announced that it had filed a motion to intervene in order to be a participant in the case, as well as filing a motion to dismiss the case “based on the frivolous legal claims.” For more information on the CCCU’s decision, see LGBTQ Student Experiences Are Valid, but Lawsuit Is ‘Frivolous,’ Says CCCU.
According to the DOJ’s court filing on Tuesday, the Federal Rules of Civil Procedure allow non-parties (in this case, the CCCU and three Christian universities) to be granted either mandatory or permissive intervention if the non-parties meet certain requirements. One of the requirements for mandatory intervention is “the existing parties [the U.S. Department of Education] may not adequately represent the applicant’s interest.”
The CCCU and the universities expressed concern that the federal government will not “vigorously” defend the schools named in the suit and might even be “openly hostile” toward them. But the DOJ argues that this will not be the case because its interests are not in opposition to the interests of the Christian organizations named in the lawsuit. Rather, they all “share the same ‘ultimate objective’…namely, to uphold the Religious Exemption as it is currently applied.”
“The Federal Defendants are a federal agency and federal official represented by the Department of Justice, and the Complaint challenges the Federal Defendants’ application of a federal statute,” said the DOJ. “Specifically, the Federal Defendants’ ultimate objective is to defend the statutory exemption and its current application by ED [U.S. Department of Education], which is the objective sought by the Proposed Intervenors here.”
The DOJ also said that permissive intervention would not be advantageous on the grounds that if the CCCU and the Christian universities became parties in the suit, they would simply complicate it: “The presence of additional parties will complicate resolution, for example, by multiplying the number of motions that need to be resolved, increasing the amount of discovery requests, if the case proceeds to discovery, and/or making settlement more complicated.”
REAP director Paul Carlos Southwick told the Washington Post, “What this means is that the government is now aligning itself with anti-LGBTQ hate in order to vigorously defend an exemption that everyone knows causes severe harm to LGBTQ students using taxpayer money. It will make our case harder if the federal government plans to vigorously defend it like they have indicated.”
CCCU president Shirley Hoogstra told the Post that this filing from the DOJ is a relief. She said, “We’ll see what happens. We’re pleased they want to defend religious exemption.”
Slate magazine’s Mark Joseph Stern, however, sees the DOJ’s opposition to the motion to intervene as a way of preventing the CCCU from having influence in lawsuit. “The best way to prevent the federal judiciary from adopting CCCU’s extreme stance,” he said, “is to stop the organization from making it before a court in the first place.