U.S. Department of Education reaffirms Baylor’s religious exemption in response to sexual harassment complaints

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

---

The U.S Department of Education exempted Baylor University from sexual harassment claims regulated under Title IX last month after the Christian university asked the agency to dismiss discrimination complaints made by students, arguing that the claims were inconsistent with the university’s religious tenets.

After LGBTQ+ students filed several Title IX discrimination complaints against the Waco-based university — in one case for failing to address homophobic harassment by a former student’s peers — Baylor wrote to the agency’s Office for Civil Rights, arguing that the federal government previously recognized that the university is exempt from certain aspects of civil rights laws.

Lori Fogleman, the university’s assistant vice president of media and public relations, lamented that Baylor’s religious exemption was being mischaracterized as a “broad-based exception to sexual harassment.”

Instead, she said in a statement that “Baylor is responding to current considerations by the U.S. Department of Education to move to an expanded definition of sexual harassment, which could infringe on Baylor’s rights under the U.S. Constitution, as well as Title IX, to conduct its affairs in a manner consistent with its religious beliefs.”

Title IX, the federal civil rights law that protects against sex-based discrimination in educational programs and activities, has expanded in recent years. In 2021, President Joe Biden said those protections should also include LGBTQ+ students.

The expansion has exposed rifts between faith-based or conservative-led public schools and universities and LGBTQ+ people seeking protection.

In May, Baylor President Linda Livingstone sent a letter to the federal education agency requesting that its civil rights office dismiss several complaints made by LGBTQ+ students, citing the university’s stance against same-sex relationships and sexual conduct.

Livingstone wrote that because Baylor believes marriage is between a man and a woman and “affirms the biblical understanding of sexuality as a gift from God,” the university should be exempt from Title IX requirements that contradict those Baptist doctrines.

The agency responded in July with a list of Title IX provisions that Baylor was exempt from on the grounds “that they are inconsistent with the University’s religious tenets.” Included in that list were regulations prohibiting sexual harassment.

Baylor’s request for a religious exemption to Title IX can be traced to several discrimination complaints LGBTQ+ students filed as long as two years ago.

While she was a student at Baylor, Veronica Bonifacio Penales found sticky notes with homophobic slurs on her dorm room door. She said she received similar comments from peers on social media. Claiming Baylor did nothing to address the harassment, Penales filed a discrimination complaint against the university in March 2021.

Penales also claimed the university’s policies on gay and lesbian relationships forced her to hide her sexual orientation as a queer woman, despite Baylor saying it values diversity and inclusion.

She took issue with the school’s civil rights policy, which states that as a religiously controlled university, Baylor is exempt from complying with certain aspects of civil rights laws.

“This statement tells me that Baylor cares more about its right to discriminate against queer and other students than it does about the health and safety of its queer and other students,” Penales wrote in her declaration for the discrimination complaint.

More than two years after Penales filed her complaint, Baylor received notice from the federal agency that its religious exemption to Title IX includes sexual harassment prohibitions.

The education department’s letter doesn’t mean Penales’ complaint is immediately closed, but that’s a likely outcome, said Paul Carlos Southwick, director of the Religious Exemption Accountability Project, an advocacy group that filed a complaint on behalf of Penales. The civil rights office still needs to determine if Penales’ Title IX complaint should be dismissed, Southwick said.

Southwick said in the history of Title IX, no other university has requested such an exemption.

“It doesn’t appear to meet a wholesale exemption from sexual harassment regulations, but the language is really vague in general,” Southwick said.

Elizabeth Reiner Platt, the director of the Law, Rights, and Religion Project at Columbia Law School, said in a statement to The Texas Tribune that this exemption was disappointing coming from a governmental agency tasked with protecting civil rights.

“This decision is the latest example of religious exemptions being expanded in ways that undermine equality rights and, ultimately, harm religious communities,” she said.

Baylor has a rocky history with Title IX compliance. In 2016, the education department investigated the university over allegations that it failed to address numerous sexual violence claims, many of which were made against football players.

Both head football coach Art Briles and university President Ken Starr were ousted after a damning report found that administrators failed to notify authorities of allegations against football players, even after speaking with victims.

Disclosure: Baylor University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

---

The full program is now LIVE for the 2023 Texas Tribune Festival, happening Sept. 21-23 in Austin. Explore the program featuring more than 100 unforgettable conversations coming to TribFest. Panel topics include the biggest 2024 races and what’s ahead, how big cities in Texas and around the country are changing, the integrity of upcoming elections and so much more. See the full program.