Christian School Challenges USDA's Interpretation Of Sex Discrimination Under Title IX

A Christian school which enrolls 56 students in grades Pre-K to 8 filed suit this week in a Florida federal district court challenging a U.S. Department of Agriculture Departmental Regulation defining sex discrimination as including discrimination on the basis of sexual orientation or gender identity.  The school is covered by the regulation because it participates in Title IX federal meal programs for its low-income students. The complaint (full text) in Faith Action Ministry Alliance, Inc. v. Fried, (MD FL, filed 7/27/2022) alleges in part:

9. If Grant Park Christian Academy does not comply with the new school lunch mandate, it will lose lunch funding for its children.

10. But if Grant Park Christian Academy complies with the new school lunch mandate, it will suffer harms to its educational mission, free speech, and religious exercise. It will no longer be able to maintain sex-separated restrooms for boys and girls based on their biological differences. It will no longer be able to maintain sex-specific dress code and uniform policies, in which, for example, only female students are permitted to wear skorts. It will no longer be able to draw its workforce from among those who share and live out its religious convictions. It will no longer be able to refrain from using pronouns that do not correspond to biological sex.

The complaint concedes that there is an exemption in Title IX for religious organizations where compliance would be inconsistent with their religious tenets. However, plaintiff objects to the requirement that it submit an exemption request for USDA approval, saying in part:

This exemption should apply by operation of statute, but USDA interprets Title IX to require religious schools to submit exemption requests.... These requests do not guarantee that schools have been, or even will be, exempt—but submitting requests do subject schools to a name-and-shame harassment campaign from activists.

ADF issued a press release announcing the filing of the lawsuit.

UPDATE: In an August 5 court filing, the parties informed the court:

Today ... state officials informed Grant Park Christian Academy that the school would be allowed to continue participating in the National School Lunch Program.... In addition, attorneys for the United States Department of Justice ... acknowledged that Grant Park Christian Academy qualifies for a religious exemption under Title IX of the Education Amendments of 1972 and issued a written letter confirming the school’s religious exemption....

Title IX Applies To Religiously Affiliated School That Is Tax Exempt

The provisions of Title IX of the Education Amendments Act of 1972 which bar sex discrimination apply to "any education program or activity receiving federal financial assistance". In Buettner-Hartsoe v. Baltimore Lutheran High School Association, (D MD, July 21, 2022),  a Maryland federal district court held that a §501(c)(3) tax exemption for a religiously-affiliated high school constitutes federal financial assistance so that the school is subject to Title IX. The court added that also in its view, schools that discriminate on the basis of sex, just like those that discriminate on the basis of race, are not entitled to federal tax exemptions. The court's opinion applies to cases brought by 5 women who are former students at the high school who allege sexual assault and verbal sexual harassment by male students at the school. JDSupra reports on the decision.

Parents' Group Says Infrastructure Appropriations To Private Schools Violate Mississippi Constitution

A parents' organization has filed suit in a Mississippi state trial court challenging two Mississippi laws that together appropriate $10 million for grants to private or nonpublic schools for water, sewer and broadband infrastructure projects.  The appropriated funds come from federal Coronavirus State Fiscal Recovery Funds received under the American Rescue Plan. The complaint (full text) in Parents for Public Schools v. Mississippi Department of Finance and Administration, (MS Chancery Ct., filed 6/15/2022), contends that the Mississippi laws violate Section 208 of the Mississippi Constitution that provides:

No religious or other sect or sects shall ever control any part of the school or other educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school, or to any school that at the time of receiving such appropriation is not conducted as a free school.

The Mississippi ACLU issued a press release announcing the filing of the lawsuit. 

10th Circuit: No Interlocutory Appeal Of Ministerial Exception Determination

 In Tucker v. Faith Bible Chapel International, (10th Cir., June 7, 2022), the U.S. 10th Circuit Court of Appeals, in a 2-1 decision, held that interlocutory appeals from the denial of a ministerial exception defense are not permitted.  The 50-page majority opinion said in part:

the “ministerial exception” is an affirmative defense to employment discrimination claims, rather than a jurisdictional limitation on the authority of courts to hear such claims....

In the case, a former high school teacher and administrator/ chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school.

Judge Bacharach filed a 44-page dissent, saying in part:

The ministerial exception also advances values of a high order, protecting religious bodies from burdensome litigation over religious doctrine and preserving the structural separation of church and state. These values compel courts to resolve application of the ministerial exception at an early stage of the litigation.

NY School Districts Not Required To Provide Bussing For Religious Schools On Days Public Schools Are Closed

In In the Matter of United Jewish Community of Blooming Grove, Inc. v. Washingtonville Central School District, (NY App., June 2, 2022), a New York state appellate court held that under New York statutory law, school districts are not required (but are permitted) to provide bus transportation to non-public school students on days when those schools are in session but public schools are closed. The suit was brought seeking to require the school district to provide transportation to students in Jewish schools in Kiryas Joel on all days when those schools were open.

Certiorari Denied In Wisconsin Parochial School Bussing Case

The U.S. Supreme Court today denied review in St. Augustine School v. Underly, (Docket No. 21-1295, certiorari denied 6/6/2022). (Order List). In the case, the U.S. 7th Circuit Court of Appeals sent back to the district court a suit challenging Wisconsin's refusal to provide bus transportation to students at St. Augustine School. The decision was based on a Wisconsin statute that requires school districts to bus private school students, but limits the obligation to only one private school affiliated with the same religious denomination or sponsoring group in each attendance district. The case has a complicated litigation history. (See prior posting.)

6th Circuit En Banc Dismisses Mask Mandate Challenge As Moot

In Resurrection School v. Hertel, (6 Cir., May 25, 2022), an en banc panel of the U.S. 6th Circuit Court of Appeals held by a vote of 13-1-3 that a free exercise challenge to Michigan's COVID mask mandate for school children is moot. The mandate is no longer in effect. The suit was brought by a private religious school and two parents of school children. One judge concluded that the preliminary injunction appeal moot, but the proceedings for a declaratory judgment and permanent injunction are not. The majority said in part:

For all the reasons recited above—the changed circumstances since the State first imposed its mask mandate, the substantially developed caselaw, the lack of gamesmanship on the State’s part—we see no reasonable possibility that the State will impose a new mask mandate with roughly the same exceptions as the one originally at issue here. This claim is moot—indeed palpably so.

Judge Bush in a 31-page dissent joined by two other judges said in part:

[T]he majority’s decision to declare the entire case against MDHHS moot—rather than simply deciding the preliminary-injunction appeal—has stripped us of a valuable opportunity to clarify the law of our circuit. What the majority should have done, instead, is rule solely on the interlocutory order before us.

Fox2 Detroit reports on the decision.

New York Releases New Proposed Curriculum Rules For Nonpublic Schools

On March 10, the New York Education Department announced the release of the third version of Proposed Regulations (full text) to assure substantially equivalent instruction for non-public school students. According to Hamodia:

These regulations, like the those previously proposed, require periodic reviews of every nonpublic school by their LSA (local school district or authority).

Where they differ is that they offer a few paths for a nonpublic school to avoid those reviews, at least initially. One such path is “registration” — which is the technical term for a high school that administers the Regents examinations. Another is “accreditation” by an agency that is approved by the State Education Department....

Our analysis is that all of the non-Jewish private schools will be exempt from LSA reviews while a majority of yeshivos will not be exempt. As a result, these regulations governing the substantial equivalency reviews by LSAs will be applied exclusively at yeshivos.

6th Circuit Tells District Court To Reconsider Injunction Denial Against School Mask Order

In Resurrection School v. Hertel, (6th Cir., Jan, 12, 2022), the U.S. 6th Circuit Court of Appeals vacated a Michigan federal district court's denial of a preliminary injunction against Ingham County, Michigan's COVID order requiring elementary school students, including those in religious schools, to wear masks in the classroom. It sent the case back to the district court for it to reconsider  the question of whether parents of religious school students are entitled to an injunction pending appeal. The court based its order on the fact that the district court relied on a 6th Circuit decision that was subsequently vacated by an en banc order.

Cert. Denied In Challenge To Oregon's Limits On Parochial Schools

The U.S, Supreme Court today denied review in Horizon Christian School v. Brown, (Docket No. 21-567, certiorari denied 11/15/2021). (Order List).  In the case, the U.S. 9th Circuit Court of Appeals in an Aug. 2 opinion (full text) affirmed the denial of a preliminary injunction against Oregon's previous COVID-19 restrictions on in-person schooling. The suit was brought by parents of students who attend religious schools. (See prior related posting.)

9th Circuit: COVID Closure of Private Schools May Have Violated Due Process Rights of Parents

In Brach v. Newsom. (9th Cir., July 23, 2021), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, rejected due process challenges to California's COVID-related closure of in-person instruction in public schools, but held that the closure of in-person instruction in private schools may have violated parents' and students' due process rights. The court said in part:

We reach a different conclusion, however, as to the State’s interference in the in-person provision of private education to the children of five of the Plaintiffs in this case. California’s forced closure of their private schools implicates a right that has long been considered fundamental under the applicable caselaw—the right of parents to control their children’s education and to choose their children’s educational forum. Because California’s ban on in-person schooling abridges a fundamental liberty of these five Plaintiffs that is protected by the Due Process Clause, that prohibition can be upheld only if it withstands strict scrutiny. Given the State closure order’s lack of narrow tailoring, we cannot say that, as a matter of law, it survives such scrutiny.

Judge Hurwitz dissented in a lengthy opinion, arguing that the case is moot and also disagreeing with the majority's substantive reasoning.

6th Circuit Hears Arguments On Masking Requirement For K-5 Religious Schools

Yesterday, the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Resurrection School v. Hertel. In the case, a Michigan federal district court refused to issue a preliminary injunction sought by parents of Catholic school children to eliminate the COVID face covering requirement for children attending K through Grade 5 at religious schools. Parents contend that the requirement interferes with the free exercise of the students' religion. (See prior posting.) Washington Post, reporting on appellants' arguments, said in part:

[A]ttorneys for Resurrection School in Lansing and two parents will tell the U.S. Court of Appeals for the Sixth Circuit that Catholic doctrine holds that every person is made in God’s image.

“Unfortunately, a mask shields our humanity,” the school argued in its lawsuit. “And because God created us in His image, we are masking that image.”

2nd Circuit: Vermont Town Tuition Program Cannot Exclude Parochial Schools

 In A.H. v. French, (2d Cir., June 2, 2021), the U.S. 2nd Circuit Court of Appeals filed its opinion explaining its Feb. 3, 2021 Order granting a petition for a writ of mandamus.  At issue was Vermont's refusal to allow students attending religious schools to participate in the state's Town Tuition Program. School districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved non-religious private high school. The Second Circuit held that the exclusion of religious high schools from the program violates the First Amendment, saying in part:

Four years ago, the Supreme Court reminded states that it “has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.” Trinity Lutheran Church of Columbia, Inc. v. Comer.... Last June, the Court clarified that this rule does not allow a state to apply a state constitutional prohibition on aid to religion that would “bar[] religious schools from public benefits solely because of the religious character of the schools.” Espinoza v. Mont. Dep't of Revenue.... The Court emphasized that “[s]tatus-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses”....

Judge Menashi filed a concurring opinion.

10th Circuit Hears Oral Arguments In Ministerial Exception Case

On Tuesday, the U.S. 10th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Tucker v. Faith Bible Chapel International.  In the case, a Colorado federal district court refused to dismiss on the pleadings a ministerial exception case. At issue is whether a science teacher and chaplain/ director of student life at Faith Christian Academy is a "minister" for purposes of the exception.  Plaintiff  was fired after he organized a controversial chapel service titled "Race and Faith." Reuters has additional background on the oral arguments.

6th Circuit: County COVID Order Closing All High Schools Infringes Parochial Schools' Rights

In Monclova Christian Academy v. Toledo-Lucas County Health Department, (6th Cir., Dec. 31, 2020), the U.S. 6th Circuit Court of Appeals granted an injunction pending appeal against enforcement of a health department order prohibiting in-person attendance for Grades 7-12 at the nine Christian and Catholic schools bringing suit. The health department order imposed the same restrictions on public and secular private schools in the Ohio county. The court held that in deciding whether religious schools are treated less favorably than comparable secular activities, it is not enough that secular schools are treated in the same manner:

In Lucas County, the plaintiffs’ schools are closed, while gyms, tanning salons, office buildings, and the Hollywood Casino remain open. Cuomo makes clear that those secular facilities are “comparable” for purposes of spreading COVID-19. 141 S. Ct. at 66; see also, e.g., Roberts, 958 F.3d at 414. The Resolution’s restrictions therefore impose greater burdens on the plaintiffs’ conduct than on secular conduct.

The court also rejected the state's argument that the schools' exercise of religion was not burdened because the order allowed the schools to open for religious education classes and religious ceremonies. The court said in part:

... [N]o one argues that the Department has targeted the plaintiffs’ schools or acted with animus toward religion here. But the plaintiffs argue that the exercise of their faith is not so neatly compartmentalized. To the contrary, they say, their faith pervades each day of in-person schooling.... We have no basis to second-guess these representations.... The Department’s closure of the plaintiffs’ schools therefore burdens their religious practice.

Josh Blackman at Volokh Conspiracy reports on the decision.

Court Refuses To Enjoin Mask Requirement For Religious School Students

In Resurrection School v. Gordon, 2020 U.S. Dist. LEXIS 242315 (WD MI, Dec. 16, 2020), a Michigan federal district court refused to issue a preliminary injunction sought by parents of Catholic school children to eliminate the COVID face covering requirement for children attending K through Grade 5 at religious schools. Parents contend that the requirement interferes with the free exercise of the students' religion. Rejecting that claim, the court said in part:

The order is clear: individuals over the age of five must wear a mask when they are out in public. Therefore, given the near-universal mask requirement, the Court finds nothing in the contours of the order at issue that correlate to religion, and finds that the order "cannot be plausibly read to contain even a hint of hostility towards religion." ... The Court finds that the challenged face-mask requirement is neutral and generally applicable. Any burden on Plaintiffs' religious practices is incidental, and therefore, the orders are not subject to strict scrutiny.... Plaintiffs have failed to establish a liklihood of success on the merits of their First Amendment claim.

6th Circuit Refuses Injunction Pending Appeal Of Religious School Closure Order

 In Pleasant View Baptist Church v. Beshear, 2020 U.S. App. LEXIS 40077 (6th Cir., Dec. 21, 2020), the U.S. 6th Circuit Court of Appeals refused to issue a preliminary injunction pending appeal of a COVID Order by the Kentucky governor which, among other things, barred in-person instruction in  religious schools until January 4. The court said that the Order was about to expire of its own terms. Judge Donald filed a concurring opinion which expressed concern with one of plaintiff's arguments:

Fundamental to Christian School Plaintiffs' argument in this emergency appeal is that under the Free Exercise Clause of the First Amendment, EO 2020-969 burdens their "hybrid rights." That is, the order burdens both their Free Exercise rights and other constitutional rights, a combination that, they contend, triggers an exception to Smith and subjects even neutral laws of general applicability to strict scrutiny....

We have had no reason to re-consider our view that Smith's discussion of "hybrid rights" was anything but dicta.

The Constitution is not a mixing bowl for rights that when considered in the aggregate are entitled to a higher level of scrutiny compared to when those exact same rights are viewed in isolation.

... I provide the foregoing analysis ... to highlight what I see as a troubling trend in the use of the Court's emergency docket....

I do not see an emergency appeal as the proper forum to advocate for abrupt and sweeping change to well-settled federal law.

Supreme Court, 7-2, Refuses To Reinstate Injunction Against Kentucky School Closing Order

 In Danville Christian Academy, Inc. v. Beshear, (US Sup. Ct., Dec. 17, 2020), the U.S. Supreme Court by a vote of 7-2 refused to reinstate a district court's injunction against the Kentucky governor's November 18 COVID-related school closing order. The 6th Circuit had stayed the injunction. The governor's Order was challenged by a Christian school. The majority said in part:

The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed. The Order applies equally to secular schools and religious schools, but the applicants argue that the Order treats schools (including religious schools) worse than restaurants, bars, and gyms, for example, which remain open. For the latter reason, the applicants argue that the Order is not neutral and generally applicable....

Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

Justice Alito filed a dissenting opinion that Justice Gorsuch joined. And Justice Gorsuch filed a dissenting opinion that Justice Alito joined. SCOTUSblog discusses the decision. (See prior related posting.)

Michigan Catholic School Challenges COVID Closure Order

A private Catholic school has sued seeking a declaration that Michigan's latest COVID-19 order temporarily closing down in-person high school instruction violates its Free Exercise rights.  The complaint (full text) in Saint Michael Academy, Inc. v. Gordon, (WD MI, filed 12/11/2020) alleges in part:

The Declaration of Dr. Jayanta Bhattacharya, a world-renowned scientific expert, professor of Medicine at Stanford University, and author of 136 articles in peer-reviewed journals, attached to this Complaint as Exhibit 3, presents scientific analysis which shows that prohibiting in-person instruction for pupils in grades 9 through 12 as does Director Gordon’s current Order, is not warranted by either transmission or mortality data, and causes these students great harm....

Without in-person instruction, St. Michael Academy is unable to provide the Christ-centered, communal academic environment required for its students to grow and develop in accordance with its religious purpose, mission and vision....

The current Order is an arbitrary order that, while closing down St. Michael Academy’s high school, nevertheless permits many other types of gatherings that pose similar or greater risks of COVID-19 transmission and infection, and that are unprotected by the Free Exercise clause of the United States Constitution.

Thomas More Law Center issued a press release with more details on the case. MLive reports on the lawsuit.

Ohio County's School Closure Order Upheld

In Monclova Christian Academy v. Toledo- Lucas County Health Department, (ND OH, Dec. 14, 2020), an Ohio federal district court refused to issue a temporary restraining order against COVID-19 rules which bar in-person instruction at the high school level, and bar use of schools for various activities. The suit was filed by three Christian schools and an organization of Christian and Catholic schools.  The court said in part:

The nature of Plaintiffs’ arguments stems in part from their assertion that the educational courses they offer to their students are inextricably intertwined with their religious beliefs and, therefore, to prohibit Plaintiffs from holding classes in the manner in which they believe is most consistent with the tenets of their faith is to interfere with the free exercise of their faith....

While, as Plaintiffs note, TLCHD has not ordered gyms, tanning salons, or casinos to close, ... these are not the relevant “comparable secular activities.” Instead, the comparable secular activities are educational classes offered by all other schools in Lucas County. These specific environments have substantially similar groupings and movements of individuals....

Plaintiffs’ arguments ... would extend to prohibit the government from regulating any aspect of a Christian’s public life because, as Plaintiffs’ mission statements make clear, the purpose of providing “a biblical foundation for . . . students” is to prepare students “to exemplify Christ [and] make Biblically-based decisions” throughout an individual’s life, and not only during the schools years.