Federal directive could force schools to open
dorms, showers to members of opposite sex
JEFFERSON CITY – Three Baptist universities and other entities affiliated with the Missouri Baptist Convention (MBC) are jointly filing an amicus curiae brief supporting the College of the Ozarks (COO) in its lawsuit challenging a federal Housing directive that could force Christian universities and other ministries to violate biblical convictions regarding sex, gender and marriage.
In April 2021, Alliance Defending Freedom (ADF) attorneys representing COO asked the U.S. District Court of Missouri to halt the Biden administration’s directive, which ADF said would force the College of the Ozarks to open its “sex-specific dorms and showers to members of the opposite sex.” On June 4, 2021, Judge Roseann A. Ketchmark rejected ADF’s pre-enforcement arguments and dismissed the case, saying the case was not ripe until federal housing agents filed a charge or began an investigation against the school. ADF then appealed to the U.S. Court of Appeals for the Eighth Circuit.
“It’s entirely inappropriate—as well as unconstitutional—for the government to force private religious schools to open girls’ dorm rooms to males or vice-versa,” said ADF Senior Counsel Julie Marie Blake. “President Biden is punishing religious schools, organizations, and churches simply because of their beliefs about marriage and biological sex. Schools like the College of the Ozarks are free to follow the faith tradition they represent. That’s why we are asking the 8th Circuit to halt enforcement of this unconstitutional directive while our lawsuit proceeds.”
The directive comes from the U.S. Department of Housing and Urban Development, and it orders “entities covered by the Fair Housing Act not to ‘discriminate’ based on sexual orientation or gender identity.” The Fair Housing Act applies broadly to facilities like college dorms and showers, and forbids discrimination because of sex.
The Fair Housing Act has an exemption for religious organizations to prefer persons of their own faith. This narrow exemption does not protect religious ministries from claims of unlawful discrimination by others.
Schools who have been granted a “religious exemption” by the Department of Education under Title IX of the Civil Rights Act are not automatically exempt under the Fair Housing Act. The Biden Administration chose to issue its directive under the Fair Housing Act, seeming to bypass religious liberty exemptions under Title IX.
COO President Jerry Davis said in a statement: “This policy, advanced by President Biden, forces College of the Ozarks to decide between defending its religious liberty from government overreach or violating our core reason for existing. Young women should not be forced to share private spaces – including showers and dorm rooms – with men, and a religious institution should not be forced to betray its religious beliefs. The government’s threats include harmful fines that could easily amount to six figures, in addition to punitive damages and attorneys’ fees. Fair Housing Act violations can even put someone in jail.”
A Christian school located south of Branson, COO isn’t affiliated with the Missouri Baptist Convention (MBC). However, as reported in a previous edition of The Pathway, the MBC and its three universities are also committed to affirming biblical views of sexuality and marriage at their schools, including the housing policies of their residential facilities.
Missouri Baptist University (MBU) President Keith Ross called the federal directive “an overreach by the current administration and an infringement of our deeply held religious beliefs as a Christian University.”
Hannibal-LaGrange University (HLGU) President Anthony Allen said the directive marks “a very aggressive assault on religious liberties,” adding that HLGU will “continue to fight to preserve our values and tenets of our faith.”
Brad Johnson, interim president at Southwest Baptist University (SBU), also noted the need for vigilance among Christian universities because of such legal challenges. “We continue to watch this development very closely as it is troubling anytime” a federal law, directive or ruling “threatens the values we hold dear.”
Michael and Jonathan Whitehead, a father-son legal team in suburban Kansas City, will be drafting the brief, and inviting other Baptist ministries to join in the amicus brief effort. Michael Whitehead is general counsel for the Missouri Baptist Convention. Jonathan is a trustee for the SBC Ethics & Religious Liberty Commission.
The Whiteheads said in a statement: “We support the right of a religious school to file a ‘pre-enforcement action’ as soon as the government announces its rule change, to define sex to include sex orientation and gender identity. A college must plan ahead in school catalogs, in building new student housing, and recruiting students. A college should not be forced to wait for the government to file specific charges and impose crippling fines and disastrous consequences. The President’s E.O. and the HUD directive cause real harm to the college, the court should grant standing to COO so the issues can be resolved.”
