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Opening Brief Filed in Appeal of Hunter, et al. v. U.S. Dept. of Education, et al.

No. 23-35174













On Appeal from the United States District Court

for the District of Oregon

No. 6:21-cv-00474-AA

Hon. Ann Aiken




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.


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.


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



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-


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-


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,



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


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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