No. 23-35174
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH HUNTER, et al,
Plaintiff-Appellants,
v.
UNITED STATES DEPARTMENT
OF EDUCATION, et al,
Defendant-Appellees,
and
COUNCIL FOR CHRISTIAN COLLEGES
& UNIVERSITIES, et al,
Defendant-Intervenors-Appellees,
On Appeal from the United States District Court
for the District of Oregon
No. 6:21-cv-00474-AA
Hon. Ann Aiken
APPELLANTS’ OPENING BRIEF
EXCERPT BELOW
INTRODUCTION
This case is about the arbitrary and unconstitutional denial of fundamental
federal legal protections for LGBTQ+ students at publicly funded colleges and
universities. Instead of acting as guardians for those rights, the U.S. Department
of Education (the “Department”) has given free license to schools that condone
and promote sex discrimination on religious grounds, singling out LGBTQ+
students and depriving them of any notice or remedy. As a result of the
Department’s policies and actions, hundreds of thousands of students have
suffered profound harm with no recourse.
Plaintiffs filed this lawsuit to put an end to this discrimination. They
alleged claims against the Department and the Acting Assistant Secretary for the
Office of Civil Rights (OCR) (collectively “Defendants”), seeking remedies for
the violation of (1) their due process and equal protection rights; (2) the
Establishment Clause; (3) their First Amendment rights to freedom of religion,
speech, assembly, and association; (4) the Administrative Procedure Act
(“APA”); and (5) the Religious Freedom Restoration Act (“RFRA”). See
generally 3-ER-516–603. The district court dismissed their claims wholesale at
the pleading stage, with prejudice. 1-ER-2. Plaintiffs are asking this Court to
reverse the district court’s decision and remand so that they can pursue resolution
of their claims on the merits.
JURISDICTIONAL STATEMENT
The district court had jurisdiction over this action under: (1) 28 U.S.C. §
1331, because this action arises under the First and Fifth Amendments to the U.S.
Constitution, the APA and RFRA; (2) 28 U.S.C. § 1361 to compel an officer of
the United States or any federal agency to perform their duty; (3) 5 U.S.C. § 702,
as it challenges the action of a federal agency; and (4) 28 U.S.C. §§ 2201 and
2202 and Federal Rule of Civil Procedure 57 to issue declaratory and injunctive
relief. See 3-ER-518–19.
The district court entered judgment on January 12, 2023, granting
Defendants’ motion to dismiss and denying Plaintiffs’ motion for preliminary
injunction. Plaintiffs filed a timely notice of appeal on March 10, 2023. See Fed.
R. App. P. 4(a)(1)(B). This Court has appellate jurisdiction pursuant to 28 U.S.C.
§ 1291 because this appeal is from a final judgment.
ISSUES PRESENTED
I. Plaintiffs can plausibly plead that Congress and the Department intended
the Exemption to deprive students who experience sex discrimination
condoned by religious schools of a valuable benefit, that LGBTQ+
students like Plaintiffs are disparately impacted by the Exemption, and that
the Exemption fails both rational basis and intermediate scrutiny. Did the
district court err in dismissing Plaintiffs’ Fifth Amendment equal
protection claim with prejudice?
II. Plaintiffs can plausibly plead facts establishing Article III standing to
challenge the August 2020 Final Rule under the APA. Did the district court
err in dismissing Plaintiffs’ APA claims with prejudice?
III. The district court applied an improper and overruled test to Plaintiffs’
Establishment Clause claim. Did the district court err in dismissing that
claim?
STATEMENT OF THE CASE
A. Title IX’s religious exemption.
Congress passed Title IX of the Education Amendments Act (“Title IX”)
in 1972, as a follow-up to the suite of anti-discrimination protections in the Civil
Rights Act of 1964 (“CRA”). Title IX prohibits sex discrimination at all
educational institutions that receive federal financial assistance, but with a
caveat: the law allows educational institutions “controlled by a religious
organization” to obtain an exemption from the law if compliance conflicts with
that religious organization’s religious tenets (the “Exemption”). 20 U.S.C.
§ 1681(a)(3); see also 15-ER-3475–77. The Department’s implementing
regulations established a set of procedures for schools to claim the Exemption.
Those regulations originally provided:
An educational institution which wishes to claim the exemption set
forth in paragraph (a) of this section, shall do so by submitting in
writing to the Assistant Secretary a statement by the highest ranking
official of the institution, identifying the provisions of this part
which conflict with a specific tenet of the religious organization.
34 C.F.R. § 106.12(b). Thus, at least according to the text of the Department’s
regulation, a school was required to formally request the Exemption in writing.
3-ER-584–85. For years, schools did so through this process. Id.
In 2013 and 2016, under the Obama administration, the Department began
to enforce Title IX to protect LGBTQ+ students, and together with the
Department of Justice, issued joint guidance instructing schools that Title IX
prohibits discrimination based on gender identity and sexual orientation. 15-ER-
3427–28. This executive action prompted a new wave of religious exemption
requests. Id. Between 2013 and 2015, fifty-six religious colleges requested
exemptions to allow them to discriminate against LGBTQ+ students. Id. These
schools requested exemptions from many Title IX regulations, including those
regarding admissions, recruiting, financial aid, counselling, housing, disciplinary
procedures, health insurance and employment. Id. Some schools requested
exemptions for sexual orientation only, some for gender identity only, and some
for both. Id. Despite purporting to protect LGBTQ+ students, the Department was
incredibly permissive in allowing these schools to claim the Exemption, and just
as it had for decades, never denied an exemption request. Id.
Facing a public outcry against such discrimination, some schools that had
yet to obtain exemptions sought assurances from the Department that they could
do so without making a formal, public, request. Id. Relying on informal guidance
from decades prior, the Department responded by informing schools that
religiously affiliated institutions that purport to discriminate against LGBTQ+
students on religious grounds inherently possess the Exemption such that they do
not need to formally claim it at all. Id. The wave of formal requests soon became
a trickle, as schools discovered that they could now claim the Exemption without
having to inform the government, the public, or prospective students. Id.
Yet, in 2020, the Department sought to make the Exemption even more
accessible for religious schools. On May 19, 2020, the Department issued a new
final rule that went into effect on August 14, 2020, that amended the Title IX
regulation at 34 C.F.R. § 106.12(b) (“Final Rule”). That provision now states:
An educational institution that seeks assurance of the exemption set
forth in paragraph (a) of this section may do so by submitting in
writing to the Assistant Secretary a statement by the highest ranking
official of the institution, identifying the provisions of this part that
conflict with a specific tenet of the religious organization. An
institution is not required to seek assurance from the Assistant
Secretary in order to assert such an exemption. In the event the
Department notifies an institution that it is under investigation for
noncompliance with this part and the institution wishes to assert an
exemption set forth in paragraph (a) of this section, the institution
may at that time raise its exemption by submitting in writing to the
Assistant Secretary a statement by the highest ranking official of the
institution, identifying the provisions of this part which conflict with
a specific tenet of the religious organization, whether or not the
institution had previously sought assurance of an exemption from
the Assistant Secretary.
With this change, the regulations now expressly permit schools to claim the
Exemption without requesting it in writing, and even after a student has filed a
Title IX complaint. This has emboldened schools that engage in discrimination,
resulted in stigmatic harm to LGBTQ+ persons, and left students like Plaintiffs
with no way of confirming whether their institution will be exempt from federal
anti-discrimination laws. 3-ER-586–88. As a result, even more LGBTQ+
students are at risk of abuse, harassment, and loss of their fundamental rights. 3-
ER-600.
B. The Plaintiffs’ educational experiences.
Plaintiffs’ experiences illustrate the Exemption’s unconstitutional
application and effect on LGBTQ+ students. Each has been denied equal access
to education because of sex. And nearly all has or will have a Title IX complaint
denied by the Department because of the Exemption. To summarize just a few of
their stories:
i. Veronica Bonifacio Penales
Plaintiff Veronica Bonifacio Penales is a queer student at Baylor
University who has been the victim of persistent harassment, including the
repeated anonymous posting of anti-LGBTQ+ slurs on her dorm room door. 3-
ER-528. But because of her sexual orientation, university administration refused
to take action to provide her with the safe educational environment guaranteed
by Title IX. Id. After Penales filed a Title IX Complaint against her school,
Baylor claimed a religious exemption from its anti-harassment obligations to
LGBTQ+ students, which the Department recently granted.1 If Veronica were a
straight woman targeted with misogynist slurs instead of homophobic ones, her
Title IX rights would be protected. Instead, they are denied to her solely because
of her sexual orientation.
ii. Alex Duron
Plaintiff Alex Duron, a male ICU nurse, had his admission to a graduate
nursing program at Union University rescinded only days before the start of the
school year (and after he sold his car, quit his nursing job, paid his deposit, and
secured graduate student housing) because he was engaged to a man. 3-ER-529–
30; see also 2-ER-277–81. The university permits straight students to marry and
to engage in sexual relations within the context of marriage but denied an
educational opportunity to Duron because of his sex. 3-ER-530.
iii. Tristan Campbell
Plaintiff Tristan Campbell was a student at Oklahoma Baptist University
who was expelled solely for publicly identifying as bisexual. 3-ER-542. Before
then, Campbell was sexually assaulted on campus by a man who lived in his
dorm. 3-ER-544. Title IX requires schools to protect students from sexual
violence, including taking steps such as moving assault victims to safer housing
and providing them with alternatives to attending classes with their assailant, but
none of those protections were available to Tristan. See, e.g., 34 C.F.R. § 106.44
(regulations relating to sexual harassment). Because Oklahoma Baptist had
claimed an Exemption allowing it to discriminate against LGBTQ+ students like
Campbell, he felt that his only choice was to stay in the closet and risk further
sexual violence, or risk being outed and subjected to discipline for his identity.
iv. Zayn Silva
Plaintiff Zayn Silva is a trans man who applied to Nyack College, which,
like many religious schools, had never requested any exemption to Title IX. 3-
ER-618, 620, 622. Nyack actively represented itself to prospective students as an
institution open and inclusive to all, but just to be sure, Silva disclosed that he
was transgender before applying. 3-ER-531–622. Silva was told by school
officials that this would not pose any problem. Id. Yet, shortly after submitting his application, Nyack notified him that it would not be moving forward with his
application because he was “not ashamed nor repentant” of his identity. 3-ER-
5231. As a result, Silva was not only deprived of his school of choice but suffered
severe anxiety and depression to the point that it stalled his career path. 3-ER-
623.
v. Jonathan Jones
Plaintiff Jonathan Jones is a bisexual, non-binary, and gender fluid
individual who attended Azusa Pacific University from 2017 to 2021. 3-ER-550;
see also 4-ER-676. Like many religious schools, Azusa has taken an amorphous
stance on LGBTQ+ relationships and student conduct. For example, during
Jones’ sophomore year, Azusa announced that it would no longer ban same-sex
dating, only to reinstate the ban in response to pressure from some of its
constituencies. 4-ER-677. Several months later, Azusa removed any mention of
same-sex dating from its student policies. 4-ER-678. While attending Azusa,
Jones experienced sex discrimination and in July 2021, Jones filed a Title IX
complaint. See 2-ER-71. It was only after this that Azusa claimed an Exemption.2
2 Letter from Adam J. Morris, Ph.D., President, Azusa Pacific University to
Catherine E. Lhamon, Assistant Sec’y for Civil Rights, Dep’t of Educ. (Nov. 9,
2022); https://www2.ed.gov/about/offices/list/ocr/docs/t9-rel-exempt/azusapacific-
university-request-11192022.pdf.
vi. Kalie Hargrove
Plaintiff Kalie Hargrove is a transgender woman and military veteran who
attended Lincoln Christian University from 2019 to 2021, after previously
attending the university from 2009 to 2010. 2-ER-140. Although the university
had a policy defining “gender modification” and “cross-dressing” as
inappropriate and immoral, it did not prohibit transgender students outright. See
2-ER-141. But in 2021, more than a year after Hargrove had begun the process
of gender transition and was well into the process of obtaining her degree,
Lincoln sent her a notice stating because she had “chose[n] to identify and live
as a transgender woman” she would be required to either drop her classes or face
charges before the school’s disciplinary committee. Faced with this choice,
Hargrove was forced to transfer to another school, which ultimately delayed her
ability to obtain a degree. Id. Because Lincoln never claimed an Exemption until
after Hargrove filed a Title IX complaint in October 2021, she had no way of
knowing that she lacked the protection of Title IX before then.
C. Procedural history.
On March 29, 2021, Plaintiffs filed a class action complaint for injunctive
and declaratory relief. 1-ER-8. Before Defendants filed a responsive pleading,
Plaintiffs filed their First Amended Complaint (“FAC”), 3-ER-516–850 and a
couple months later, moved for a temporary restraining order (“TRO”) and
preliminary injunction, seeking an order enjoining Defendants and their agents
from dismissing certain Plaintiffs’ Title IX complaints based on the unlawful
application of the Exemption and its implementing regulations. 15-ER-3470.
Defendants moved to dismiss the FAC on August 9, 2021, arguing that
Plaintiffs lacked standing and that they failed to state their first (due process and
equal protection rights under the Fifth Amendment), second (Establishment
Clause), third (First Amendment), and fifth (RFRA) claims. Notably, Defendants
did not argue that Plaintiffs’ APA claims failed as a matter of law. See generally
11-ER-2473–2518.
Defendants were joined by several intervenors, including the Council for
Christian Colleges and Universities (CCCU) and several private religious schools
who sought or received Title IX exemptions (represented by Alliance Defending
Freedom) (collectively “Defendant-Intervenors”), who filed their own motion to
dismiss the FAC on August 18, 2021. See generally 7-ER-1412–62.
On August 30, 2021, the district court denied Plaintiffs’ request for a TRO,
but reserved ruling on their Motion for Preliminary Injunction. See generally 9-
ER-2141–52. The court held an evidentiary hearing on November 4–6, 2021, but
did not resolve any of the parties’ pending motions. See 1-ER-8.
While those motions were still pending, Plaintiffs proposed filing a Second
Amended Complaint (“SAC”) to update the case caption and make other
relatively minor changes, including: adding new plaintiffs, alleging additional
facts relating to the Title IX complaints some Plaintiffs had pending with OCR,
and adjusting the prayer for relief to conform to that requested in their motion for
preliminary injunction. 2-ER-60; 1-ER-9. Notably, Plaintiffs did not attempt to
respond to arguments Defendants, or the trial Court, raised. Rather, Plaintiffs
represented that it contained the same “operative facts” as the FAC and would
not affect the issues already briefed and pending before the court. 2-ER-62; see
also 1-ER-14.
The district court did not render a decision on any of these motions until
January 12, 2023. Although it found that Plaintiffs had standing to pursue their
equal protection claims because their injuries were cognizable, that Defendants
caused those injuries, at least in part, and that Plaintiffs’ injuries would be
remedied by their requested relief, the court dismissed the FAC in its entirety. 1-
ER-41–42. The court held that Plaintiffs first, second, third and fifth claims for
relief failed as a matter of law, and that their APA claims failed for lack of
standing. 1-ER-20–24.
Despite this Court’s directive that leave to amend should be granted unless
the pleading cannot possibly be cured by the allegation of other facts, the district
court denied Plaintiffs still-pending motion to amend and dismissed the FAC with
prejudice. Id.; see Bly-Magee v. California, 236 F.3d 1014, 1019 (9th Cir. 2001);
see also Parents for Priv. v. Barr, 949 F.3d 1210, 1221 (9th Cir. 2020)
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