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Dept. of Ed.: Baylor U. is exempt from protecting LGBTQ students from faith-based harassment
This is an appalling victory for Christian bullies
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The Department of Education, in a stunningly boneheaded move, just gave Baylor University (a private Baptist school in Waco, Texas) permission to ignore anti-discrimination rules that apply across the board, prioritizing the school’s religious beliefs over the harassment of LGBTQ students.
More specifically, the school asked the government if they could be exempt from the sexual harassment provision of Title IX, which normally holds schools accountable for such violations by threatening to withhold federal funding… and the government said Sure, why not?
This makes Baylor the first school to receive an exemption that will allow it to keep receiving taxpayer dollars even if it’s allowing certain kinds of anti-LGBTQ harassment.
How this controversy began
This controversy began in 2021, when a former student named Veronica Bonifacio Penales filed a lawsuit against Baylor (along with several other plaintiffs suing their own schools). The lawsuit called on the government to end its “complicity in the abuses and unsafe conditions thousands of LGBTQ+ students endure at hundreds of taxpayer-funded, religious colleges and universities.”
Penales explained that when she was 19 and a student at Baylor, she was harassed on campus and online as a result of being queer. Someone left a Bible outside her dorm room with anti-LGBTQ passages highlighted; attached to it was a note which read, “I’m praying for you.” Another student left Post-it notes on her door simply reading “FA*.” (That’s how it’s written in the complaint; I assume there was no asterisks on the notes.)
Furthermore, students at the school kept trying to start an LGBTQ student group (Gamma Alpha Upsilon—which spells GAY in Greek), but their request was repeatedly denied even though it could be argued that the approval of such a group wouldn’t violate the school’s stated beliefs.
Baylor is a religious school that opposes same-sex marriage and sexual relationships outside of marriage; it also forbids student groups that promote ideas “that are contrary to biblical teaching.” While the school can set its own rules in this regard, that doesn’t give them the right to ignore allegations of harassment. LGBTQ students go to Baylor precisely because they believe there’s no contradiction between being LGBTQ and Christian. That’s not an invitation for harassment, though. Yet that’s what the lawsuit said was happening.
Penales said she eventually “stopped reporting incidents” to the school because their response was always that she should “go to counseling.”
Baylor asked the government for an out
That lawsuit has not yet been resolved, but this past May, the school’s president Linda A. Livingstone filed a formal request with the Department of Education for an exemption from the Title IX rules, arguing that the complaints against them would force the school to violate its religious beliefs.
The [Office for Civil Rights] complaints at issue here allege that Baylor violated OCR’s Title IX regulations by its application of its Statement on Human Sexuality, Sexual Conduct Policy, Civil Rights Policy, Theological Seminary Policy, Baptist Faith and Message of 1963, and Truett Handbook to its campus community, both as a general matter and specifically in three situations: (1) the University's alleged decision to Upsilon, (2) the University's alleged response to notice that students were subjected to harassment based on their sexual orientation and/or gender identity, (3) and the University's alleged decision to pressure University media to not report on LGBTQ events and protests in September and October 2021. Because each of Baylor's rules and policies at issue derives from Baylor's religious tenets as a Baptist university, Baylor's enforcement of those rules and policies is fully exempt from any requirements under Title IX relating to sexual orientation or gender identity.
I might be able to understand that with regards to (1) and (3) —Baylor has the right to refuse “official” status to an LGBTQ campus group and censor its own media, even though both are terrible ideas at any respectable university. But (2) doesn’t belong in the batch. If students are being harassed for their sexual identity or orientation, that must be stopped and the perpetrators should be punished. Just because the harassment is wrapped up in Bible-speak doesn’t make it acceptable.
And yet Baylor demanded an out from the government for precisely that reason, a move that would allow the harassment that Penales faced to continue unabated.
The government gave Baylor exactly what it wanted
On July 25, the government gave Baylor its response: Okay.
After saying Baylor had the right to impose its religious beliefs when it came to things like admission, financial assistance, etc.—which no one was really challenging—Catherine Lhamon, assistant secretary at the Department of Education’s Office for Civil Rights, agreed that also applied to sexual harassment… at least when “harassment” meant Christians using their faith to demonize LGBTQ people as Penales experienced.
Specifically, the University requests assurance “that the belief in or practice of its religious tenets by the University or its students” would not constitute “unwelcome conduct” under the Department’s definition of “sexual harassment” under Title IX.
To that end, the government said Baylor was “exempt from these provisions to the extent that they are inconsistent with the University’s religious tenets.”
It was an appalling decision that gives bigots at Baylor a green light to shove the Bible in the faces of all LGBTQ students on campus no matter the situation. Their faith-based bigotry is more important to Baylor than the right of LGBTQ students to have an education experience free of harassment. And the Biden administration is fine with it.
Civil rights groups are furious about this decision
It’s no wonder that Religious Exemption Accountability Project (REAP), the non-profit group that filed the original complaint on behalf of Penales, called this an “unprecedented move.”
Paul Carlos Southwick, the Director of REAP, responds: “This unprecedented move makes Baylor unsafe for LGBTQIA+ students and is truly shocking. For the first time in Title IX’s history, a federally-funded university has been given special permission, by the Biden Administration no less, to allow its LGBTQIA+ students to be sexually harassed. Any reasonable person can see that this coddling of religious extremists has gone too far.”
The Freedom From Religion Foundation agreed with that assessment and criticized the Biden administration:
“This is highly disappointing and morally reprehensible,” says FFRF Co-President Annie Laurie Gaylor. “It blows a hole in anti-discrimination laws nationwide.”
“As often happens in such situations, these exemptions will be enlarged and stretched over time,” Gaylor remarks. “The victims will be numerous students at campuses all over the country suffering discrimination in the name of religion.”
To be clear, no one’s arguing that Baylor can’t embrace its Baptist religion and have policies to that end. The issue is whether harassment in the name of Jesus ought to be tolerated, much less given a potential stamp of approval by this administration.
That’s why Penales was very blunt in her reaction: “I know many will not feel safe returning to campus, and rightfully so. If Baylor believes it has a religious liberty right to allow us to be harassed, there truly are no protections left for us.”
The school disagrees with that interpretation. One official told the Texas Tribune that the exemption “was being mischaracterized as a ‘broad-based exception to sexual harassment.’” Okay, it’s not like sexual harassment in all forms is now tolerated on campus. But it’s absolutely fair to say that Baylor has now enabled certain kinds of faith-based harassment that make LGBTQ students feel unsafe.
The bottom line here is that actions that might have constituted sexual harassment, by any reasonable definition, may now be permitted at Baylor if there’s a religious component to it. If the government agrees, Baylor won’t be penalized for ignoring it.
The silver lining here is that the Department of Education will still investigate any allegations of sexual harassment in order to determine if it falls under the exemption. But it’s a matter of deciding whether a pitch is a ball or strike when the pitch never should have been thrown in the first place. (The Department’s letter to Baylor does not mean the issues involving Penales have been resolved… but an outcome in Baylor’s favor now seems inevitable.)
A 2017 lawsuit against the school alleged that members of the football team committed 52 acts of rape between 2011 and 2014. The lawsuit was settled later that year. In 2018, the school released a statement outlining its “continued commitment to effectively addressing issues of sexual assault and interpersonal violence, including Title IX.” As of July 31, the DOE still has a Title IX investigation open on Baylor.
The fact that Baylor needed to ask the government if bullying LGBTQ students could be okay in certain situations is telling. If your school needs special permission to give more power to Christian bullies, your priorities are fucked up.
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