A Christian college in Missouri has filed an en-banc appeal to the 8th U.S. Circuit Court of Appeals seeking protection from a Biden administration policy that its officials believe will force the institution to allow biological males to live in dormitories and use showers reserved for women.
College of the Ozarks, also known as School of the Ozarks, filed a request last week for all 8th Circuit judges to rehear its case against an order from the U.S. Department of Housing and Urban Development that defines housing discrimination based on sex also to include sexual orientation and gender identity.
A three-judge panel ruled against the College in July because the federal agency had not taken any enforcement action against the institution.
“The College states that sex is based on male-female biology, not gender identity and that students must agree not to engage in sex outside marriage between a man and a woman,” the petition reads.
“Those views necessitate that the College have single-sex residence halls, roommate selection, intimate and communal. … The College regularly communicates this policy to its 1,300 students.”
The petition claims that obeying HUD’s directive on sex discrimination in housing would “fundamentally compromise the College’s religious mission, free speech, and student privacy.”
“But if it does not comply, the Directive triggers complaints, investigations, lawsuits, and substantial fines because the College separates its dorms by biological sex and communicates that policy to students,” the appeal continued.
The Alliance Defending Freedom, a conservative legal advocacy organization that has successfully argued religious liberty cases before the U.S. Supreme Court, represents the College of the Ozarks.
ADF Senior Counsel Julie Marie Blake said in a statement that the school “should be free to follow the religious tradition on which it was founded.”
“The government can’t strip a private, faith-based institution of its constitutionally protected freedoms because it disagrees with its views about marriage and biological sex,” stated Blake.
“By redefining ‘sex’ in federal law to include gender identity, President Biden has grossly overreached his authority and is mandating that Christian colleges allow boys into girls’ dorm rooms and showers, and vice versa.”
The College filed its lawsuit in April 2021. U.S. District Judge Roseann Ketchmark of the Western District of Missouri, an appointee of former President Barack Obama, ruled against the Christian school in May 2021.
In July, a three-judge panel of the 8th Circuit ruled 2-1 to reject the request for relief. Circuit Judge Steven Michael Colloton authored the majority opinion, contending that the College was not affected by the HUD policy because a complaint hadn’t been filed against the school. Colloton, a President George W. Bush appointee, said that current religious freedom protections were sufficient.
“The College’s alleged injury also lacks imminence because it is speculative that HUD will file a charge of discrimination against the College in the first place,” wrote Colloton.
“Title IX provides that its anti-discrimination provision ‘shall not apply to an educational institution which a religious organization controls,’ if applying the prohibition ‘would not be consistent with the organization’s religious tenets.”
Colloton wrote, “even when HUD interpreted the Fair Housing Act to prohibit discrimination based on sexual orientation and gender identity between 2012 and 2020, the Department brought no enforcement action against the College.”
“HUD has never filed charges of housing discrimination against a college exempt from prohibitions on sex discrimination in housing under Title IX,” he continued.
Circuit Judge Leonard Grasz, an appointee of President Donald Trump, authored a dissent opinion, arguing that the directive went against the proper process of federal guidance, which includes allowing public comments.
“An agency’s issuance of a guidance document that fails to adhere to the proper administrative procedures may achieve compliance with the government’s desired policy outcomes by in terrorem means, but it skirts the rule of law and undermines our values,” Grasz worte.
“This is especially true where regulated entities are placed under the sword of Damocles but are denied access to the courts because the sword has not yet fallen.”
Grasz said, “if the government acts as the Memorandum facially requires, it is only a matter of time before the government concludes the College’s housing policy violates the FHA.”