For years, Brigham Young University drew criticism from LGBTQ students who felt its policies prohibiting same-sex intimacy were repressive.
Today, the Utah-based university, perhaps the most prominent Mormon institution in the United States, is the subject of a federal investigation if it violated the civil rights of LGBTQ students. The US Department of Education is investigating whether the university exceeded exemptions it holds under Title IX, the federal law that prohibits discrimination based on sex.
Title IX protections include student gender identity and sexual orientation. But with his exemptions, Brigham Young is allowed, for example, to openly reject gay students from scholarships because their sexual orientation conflicts with the principles of The Church of Jesus Christ of Latter-day Saints.
The Department for Education investigation is unlikely to have legal teeth, experts say. Brigham Young likely did not overstep the bounds of his exemptions, and any attempt by the department to punish the university could lead the institution to sue, they said.
Still, the situation will be watched closely to demonstrate the department’s priorities under President Joe Biden, a Democrat, and Education Secretary Miguel Cardona. It’s part of a long debate about anti-discrimination laws and religious exemptions, and it could indirectly translate to how campuses treat students.
The Biden administration is likely defining its position on LGBTQ issues, said Jake Sapp, deputy Title IX coordinator and chief compliance officer at Austin College in Texas, who has studied the sex discrimination law extensively.
The administration can also test the limits of the Title IX religious exemption, which critics say allows non-secular institutions to openly discriminate.
“But there will be no consequences,” Sapp said. “The exemption is very strong.”
Honor Code Changes
The investigation arose out of controversy over Brigham Young’s honor code, according to Dispatches. Students must follow this code, which also prohibits extramarital sex between a man and a woman, to remain enrolled.
At the beginning of 2020, the university removed from the code a section concerning “homosexual behavior” which prohibited any form of homosexual intimacy. LGBTQ students and their supporters interpreted this removal to mean that they were allowed to be more visibly gay, including going out, holding hands, or kissing members of the same sex.
But the university and the church later clarified that a ban on homosexual activity still existed. In a report, a church representative cited the doctrine state that only heterosexual marriage is permitted and state that same-sex behavior is not compatible with the principles of the honor code.
The perceived overthrow of the university spawned protests on campus against the administration at the time. And the bitterness about her period still persists. Last year, a group of students lit up a prominent landmark, a large “Y” over an area known as Y Mountain, in the colors of the rainbow in protest. The university recently banned demonstrations on Mount Y.
The Department of Education is investigating whether the university’s treatment of LGBTQ students is consistent with its Title IX exemptions or violates their rights by disciplining them unfairly compared to their heterosexual peers.
A department spokesperson confirmed that its Civil Rights Office opened the investigation on Oct. 21, but declined to comment further. The spokesperson did not provide a copy of the complaint that prompted the investigation.
Brigham Young does not expect the OCR to take further action after its investigation, university spokesperson Carri Jenkins said in an email.
“The OCR has repeatedly acknowledged BYU’s religious exemption, including in this case,” Jenkins said.
50 years exemption
The religious exemption in Title IX has existed about as long as the law itself, which came into effect in 1972.
Several years later, in 1976, Brigham Young became the first institution to officially receive a Title IX exemption.
But like Kif Augustine-Adams, a law professor at Brigham Young, noted in research about the law, “the process by which OCR and BYU arrived at the exemption was a rocky one.”
Brigham Young’s president at the time wrote to the federal government, informing it of the institution’s exemption, without asking for one. The president “boldly asserted” that the exemption was inherent, Augustine-Adams wrote.
A similar process exists today. Religious institutions do not request an exemption from the ministry. Instead, these colleges claim exemptions from the law, and then the Department of Education confirms those exemptions. Colleges sometimes write to the department to confirm that they are exempt, but they are not required to do so.
Historically, the department has not released the names of colleges with religious exemptions, although the Obama administration broke with this practice before Trump’s Education Department resumed keeping names private.
After the department opened its investigation into Brigham Young, university president Kevin Worthen wrote to the OCR in November. Worthen described how the college faith prohibits certain practices, including same-sex relationships, and sought confirmation of its Title IX exemption.
This month, Assistant Civil Rights Secretary Catherine Lhamon replied to Worthen, outlining the university’s 15 Title IX exemptions. They encompass admissions, recruitment, housing, counseling and financial aid.
If Brigham Young had told students explicitly that his policies allowed same-sex activity and then “baited and traded” them, that might be a problem, Sapp said. But the institution is clearly controlled by a faith-based entity and makes it widely known, he said.
“It’s very clear that BYU will do well here,” Sapp said.
In the event the department finds the institution in violation of the law, Brigham Young would likely work with the agency to develop an agreement to remedy those violations, said Blaze Bowers, aAssistant Vice President for Academic and Student Support Services at Lincoln Memorial University.
Institutions can have their federal funding revoked if they violate Title IX, although that has never happened, said Bowers, who studied Title IX and higher education law at the Center for Legal Excellence. and higher education policy from Stetson University.
It “raises an eyebrow” that the department is looking into Brigham Young because faith-based institution exemptions stand up to legal scrutiny, he said.
Some have called for the religious exemption to be removed altogether. A group of more than two dozen current and former participants evangelical colleges sued the Department of Education last year, arguing the exemption should be struck down as unconstitutional.
The Biden administration is looking for ways to execute on its policy positions, Bowers said. The department is currently drafting regulations that will govern Title IX which are due for release in April. But experts don’t think the administration will remove the exemption from its proposal.
And last year, he determined that Title IX protected against discrimination based on gender identity and sexual orientation. In making this decision, the Ministry of Education relied on a 2020 Supreme Court decision, Bostock v. County of Claytonwho established federal labor law protections.
“It will be a balancing act,” Bowers said. “How will the Biden administration facilitate and fulfill religious interests with anti-discrimination laws and regulations that protect LGBTQ students on college campuses?”