Michigan Attorney General Dana Nessel joined a coalition of 19 states and the District of Columbia, in filing an amicus brief with the U.S. Ninth Circuit Court of Appeals in a Title IX class-action case titled Hunter v. U.S. Department of Education to secure sex discrimination protections for students.
Title IX, which prohibits sex discrimination in federally funded schools, requires that schools act to prevent discrimination and harassment on campus. The coalition’s brief supports arguments that a rule related to Title IX and adopted at the tail end of the Trump administration is invalid. The lawsuit was brought on behalf of students opposing the Department of Education’s (DOE) implementation of a new regulation governing Title IX’s religious exemption from anti-discrimination laws. The new regulation significantly weakened protections from discrimination on religious grounds.
When Congress enacted Title IX, it included a narrow exemption for schools controlled by religious institutions that have tenets incompatible with Title IX. However, during the Trump administration, the DOE used administrative rulemaking to vastly expand this narrow religious exemption.
The 2020 rule makes it more difficult for prospective students to tell which schools are claiming a religious exception. The DOE eliminated the requirement that educational institutions advise the Office for Civil Rights in writing if they wanted to invoke a religious exemption. As a result, schools could invoke the exemption, without notice, in response to a student’s complaint.
“This Trump-era rule allows schools to discriminate against LGBTQ students based on a religious exemption they only assert once a claim has been filed against them,” Nessel said. “Students are entitled to know if their school will assert the religious exemption from Title IX’s anti-discrimination provisions before they become victims, not after. I gladly join my colleagues in supporting the plaintiffs in Hunter v. U.S. Department of Education, as well as any students who have faced discrimination at schools that ought to protect them.”
As the brief states, students “should not have to wait until after they become a victim of discrimination to learn that their school considers itself exempt from Title IX’s anti-discrimination, anti-harassment, and anti-retaliation rules. Nor should schools be allowed to wait to assert their exemption from Title IX until after a complainant comes forward with an allegation.”
The amicus brief was led by Oregon Attorney General Ellen Rosenblum and joined by the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Massachusetts, Maryland, Michigan, Minnesota, Nevada, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and Washington.
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