Christian university granted waiver in sexual harassment case

A US university has become the first to be granted a religious-based exemption that affirms it does not have to comply with aspects of a sexual harassment law.

Baylor University has had its exemption approved by the Biden administration as it faces complaints from several students who allege they suffered gender-based abuse at the 20,000-student private Christian institution about 95 miles (153 kilometres) south of Dallas.

The exemption was granted under the terms of Title IX, the 1972 federal law that generally forbids sex-based discrimination in educational programmes, after Baylor argued that some provisions of Title IX are inconsistent with its religious tenets.

Those bringing complaints in the case include Veronica Bonifacio Penales, an LGBTQ+ student who graduated in May from Baylor and said she endured fellow students repeatedly posting stickers on her dormitory room door that featured homophobic slurs.

In a statement from her attorneys, Ms Penales said the situation meant that she and other students would not feel safe returning to campus. “If Baylor believes it has a religious liberty right to allow us to be harassed,” she said, “there truly are no protections left for us.”

A spokesman for the US Department of Education declined to comment on the matter. Baylor University issued a statement saying the waiver “is being mischaracterised as a broad-based exception to sexual harassment policy within Title IX Regulations”. Instead, the university said, it merely gives the institution the right “to conduct its affairs in a manner consistent with its religious beliefs”.

US presidential administrations do regularly grant religiously affiliated colleges and universities waivers from Title IX, in such areas as recruitment and admissions and curriculum and campus services, especially in cases that involve sexual orientation.

But the Baylor case marks the first by any US presidential administration to approve a waiver for acts of sexual harassment, said Paul Southwick, a private attorney representing Ms Penales and other Baylor students, who also serves as an adjunct professor at the Lewis & Clark Law School.

The federal waiver doesn’t necessarily mean Baylor won’t have to act against the students accused by Ms Penales and other complainants of harassing them, Professor Southwick said. Instead, the waiver approval is part of a wider review process through which the education department will decide whether to uphold the complaints, he said.

In the hearing process, Professor Southwick said, Baylor could claim it has its own religious ways of dealing with homophobic abuse of students and so the government should not get involved.

In its statement, Baylor University said it “has taken and will continue to take meaningful steps to ensure members of the LGBTQ community are loved, cared for and protected as a part of the Baylor family. Further, the university remains committed to promoting and maintaining an educational environment in which students can learn and grow in accordance with our Christian mission and our call to love our neighbours as ourselves.”

Professor Southwick said he expected other religiously affiliated universities in the US will seek similar waivers from sexual harassment complaints if Baylor is successful in defeating the complaints against it.

As for the Biden administration – which generally has expressed opposition to sexual harassment – the upcoming US presidential election could be a factor in its decision to grant the waiver, Professor Southwick said. “I think the Biden administration is scared of evangelicals, and what that might mean for electoral politics,” he said. “But that's just my speculation.”

paul.basken@timeshighereducation.com