The school is now exempt from investigating sexual harassment allegations when doing so conflicts with its religious tenets.

Dallas Morning News | Joy Ashford | Sept. 8, 2023

Baylor University, one of the largest Christian universities in the nation, has been at the center of controversy after the Department of Education expanded the school’s religious exemption to Title IX in a letter made public last month. The school is now exempt from investigating sexual harassment allegations when doing so conflicts with its religious tenets.

Baylor requested the expanded exemption in May, a month after the U.S. Department of Education opened an investigation into the school’s alleged failure to respond to claims of sexual harassment against a former LGBTQ student.

Baylor affiliates and Baptist leaders have voiced disapproval of Baylor, saying the exemption leaves LGBTQ students little recourse when faced with sexual harassment. Over a thousand Baylor affiliates and Baptist ministers signed a letter urging the school to “affirm an individual’s right to participate in a campus climate that is free from harassment in all forms.”

Signees include the former chair of the school’s religion department, more than 10 current faculty members in that department, senior members of the administration and former Title IX coordinator Patty Crawford, who resigned following a sex abuse scandal at Baylor in 2016.

On Tuesday, five members of Congress sent a letter to the Department of Education expressing concern over the department’s decision. Baylor’s request, they wrote, “is not only unprecedented but is a blatant attempt to interfere and pressure the Department to stop an ongoing sex-based harassment investigation. That is unacceptable.”

Among the signees were three Democratic congressmen from Texas: Rep. Joaquin Castro of San Antonio, Rep. Veronica Escobar of El Paso and Rep. Greg Casar of Austin. The letter was endorsed by organizations including National Women’s Law Center, Human Rights Campaign and Interfaith Alliance.

Baylor had previously requested religious exemptions from Title IX only once before, in 1976, Baptist News Global reported. That year, the school asked to be exempt from laws that would have required it to grant medical leave to unmarried pregnant women and give female and male ministerial students equal access to scholarships and educational programs. If Baylor did not receive the exemption to Title IX’s sexual harassment regulations, it would have been required to respond promptly to all formal sexual harassment complaints, including those from LGBTQ students.

In a schoolwide email, Baylor President Linda Livingstone described the school’s request as an assertion of its existing religious exemptions. She said Baylor’s policies regarding sexual harassment will not change and the school’s Title IX office will continue to investigate allegations and complaints.

Why did Baylor ask the Department of Education for a religious exemption to sexual harassment regulations?

In 2021, Baylor student Veronica Bonifacio Penales filed a Title IX complaint against the school with the Department of Education, alleging Baylor failed to investigate anti-LGBTQ harassment against her.

According to Penales, the harassment began soon after she came to Baylor in 2019. That year, when she posted an Instagram photo showing a pride flag drawn on her leg, it was “spammed” with hashtags such as #NotMyGoodBaptistUniversity and #NotMyGoodChristianUniversity, she said. One person commented “#f--runner” because Penales had been chosen as a freshman flag runner for a Baylor football game. Later in college, she said, numerous sticky notes were posted on her dorm room door with the word “f--.”

Penales, who graduated this year, said when she reported harassment to the Title IX office, she never heard back or saw any action taken.

The Department of Education opened an investigation into her complaint on April 7. On May 1, Baylor wrote to the Department of Education requesting Penales’ suit be dismissed and the school’s religious exemptions to Title IX be applied to sexual harassment regulations.

The department granted the school’s request for an expanded exemption in a letter made public in August. Baylor is the first school to request or receive a religious exemption to Title IX’s sexual harassment regulations, according to Paul Southwick, a lawyer whose organization, the Religious Exemption Accountability Project, represents Penales.

Penales’ complaint against Baylor waits on a decision from an attorney investigator in the Dallas office of the Department of Education’s Office for Civil Rights.

What will this mean for schools like Baylor?

The Department of Education’s decision to grant this religious exemption will likely set a precedent for other Christian schools, including those in North Texas such as Dallas Baptist University and the University of Dallas, said Steven K. Green. Green is a law professor at Willamette University and the author of Separating Church and State: A History, which explores how religious liberty laws in the U.S. have changed over time.

The Supreme Court has recently become very deferential to religious institutions, Green said, to the point where these institutions often no longer need to justify why their religious exemptions apply in different situations. Referring to Penales’ case, Green said, Baylor is “trying to have a preemptive decision from the Department of Education, so it doesn’t even have to go into court and defend any of these actions.”

Representatives for Baylor declined to comment on Green’s characterization, citing the ongoing investigation.

Shiwali Patel, a lawyer who specializes in Title IX cases and a former employee of the Department of Education, said it’s dangerous to reduce outside accountability for sexual harassment at colleges and universities. “Federal enforcement, it pushes institutions to do more and to do better by students.

“What’s to stop them from continuing to discriminate and continuing to sweep harassment under the rug?”

Why are Baylor affiliates criticizing the school?

In their letter titled “Our Faith Does Not Discriminate,” Baylor affiliates and Baptist ministers said the exemption request mischaracterized the school’s governance and the nature of the Baptist faith.

Affiliates challenged Baylor’s claim that it met the bar for religious exemptions — namely that it is controlled by a religious organization with religious tenets that run counter to Title IX policies.

In a statement to The Dallas Morning News, Baylor spokesman Jason Cook said the Department of Education’s letter included an extensive review of Baylor’s board structure and approved the school’s exemption based on that governance. Cook also cited Baylor’s letter to the department, in which the school described its affiliation with the Baptist General Convention of Texas.

Baylor removed itself from the religious control of this convention in 1990, said the Rev. George Mason, an influential Dallas pastor, making it “duplicitous” for the school to now cite religious control as the basis for a Title IX exemption.

“The argument that was made in 1990 is the argument that should be upheld today, and that is a recognition that Baptists do not have a history of doctrinal tenets that churches, individuals or universities must adhere to in order to be consistent with their religious values,” said Mason, lead adviser for the Baptist House of Studies at Southern Methodist University’s Perkins School of Theology.

“We are not organized as Baptists around doctrine. We historically have respected freedom of conscience and the pursuit of truth, wherever it may be found.”

Joy Ashford covers faith and religion in North Texas for The Dallas Morning News through a partnership with Report for America.