Religious exemptions or equal protection in education?

A transgender student expelled after revealing her gender identity—California Baptist University, July 2011. Two lesbian players on a women’s basketball team harassed into leaving the team and college when their relationship was discovered—Pepperdine University, December 2014. A gay student expelled one semester before graduation for marrying her same sex partner—Southwestern Christian University, March 2014.

These are a few of the many young adult lives that have been affected by their religiously identified colleges’ refusal to grant them the equal protection that the Constitution and United States laws are supposed to provide.

{mosads}However, two colleges have recently withdrawn from the Council of Christian Colleges and Universities (CCU) because they did not agree with discrimination against LGBT students and faculty.

Eastern Mennonite University, a founding member of CCU, and Goshen College both submitted letters of resignation after their decision to allow the hiring of married gay and lesbian faculty caused dissension in the Consortium.

In late December the Human Rights Campaign (HRC) published a report on the 56 colleges and universities that have requested exemptions from treating LGBT students without discrimination. They advocate for a religious exemption based on their theological tenets. The number of schools requesting this exemption, and being granted it according to the HRC, has expanded exponentially, from one school in 2013 to the 56 schools requesting an exemption in 2015. Thirty-three of these schools claimed an exemption based on gender identity and 23 based on sexual orientation.

Granting exemptions to religiously controlled schools and allowing them to discriminate is bad policy and it violates the right of LGBT people to be treated equally by their government, their schools, their communities.

The United States Department of Education claims that it has no recourse under the law and must grant these exemptions when schools apply for them. Under Title IX, Congress has indeed written in an exemption for schools that are controlled by a religious institution.

The majority of schools requesting exemptions are affiliated with the Southern Baptist Convention.

But the arguments they make against gay and transgender students is the same one that was once made about race. Take the history of Bob Jones University.

Founded in 1927 and based in South Carolina, part of their restriction on social life was to forbid interracial dating and marriage. For most of the history of the school, that would not have presented a challenge, since no black student had ever been admitted to the school prior to 1971. With the passage of the Civil Rights Act of 1964 and the IRS announcement in 1970 that it would no longer grant federal income tax exempt status to schools that racially discriminated, Bob Jones University began to search for a theology that would support its segregationist ideology.

In a history of the university, Daniel Turner (1997) quotes Bob Jones III testifying that the Bible prohibits interracial dating and marriage or the obliteration of “any other line of distinction that God has established.”

Bob Jones University appealed the IRS revocation of its tax exempt status (and the loss of all Title IV student loan funds) to the Supreme Court, which upheld the revocation, reasoning that any organization granted that exemption must not have a purpose that is illegal or against “established public policy.” Gradually, as a result, the university began admitting black students.

However, it was not until after the campaign visit of presidential candidate George W. Bush–when the ban on interracial dating received national attention—that BJU repealed its policy.

On the Bob Jones University website, in a recent Statement About Race, the university recognizes its theological error: “For almost two centuries American Christianity, including BJU in its early stages, was characterized by the segregationist ethos of American culture. Consequently, for far too long, we allowed institutional policies regarding race to be shaped more directly by that ethos than by the principles and precepts of the Scriptures. We conformed to the culture rather than providing a clear Christian counterpoint to it.”

Schools and the individuals acting for these colleges argue they have no choice—they must adhere to their religious faith. And most who believe in a religion assume that the theology they have been taught and accept is immutable.

But the Bible does not forbid interracial dating or marriage; a segregationist culture created that myth. Nor does the Bible forbid an individual to find and live a gender identity that is comfortable.

To allow any school to refuse to treat LGBT students equally violates “established public policy,” as the Supreme Court said about segregation in Bob Jones University v United States (1983). It is another instance of allowing policies to conform to a conservative cultural ethos, rather than providing “a clear Christian counterpoint to it.”

McDaniel teaches Law and Religion at the University of Arizona and Public Policy and Human Rights at Union Institute and University. She is a Tucson Public Voices Fellow with The OpEd Project.