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Fair Process for Christian Colleges Too Please


The College of the Ozarks is a private Christian college that operates according to its religious identity and pursuant to sincerely held Christian tenets. This includes its policies impacting housing and other intimate spaces


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The President of the United States issued an Executive Order deeming that FHA’s prohibition on sex discrimination included gender identity and sexual orientation. Exec. Order 13988; Pet. App. 3a. Without providing any notice or opportunity to comment, the Department of Housing and Urban Development (HUD) promulgated a directive implementing the Executive Order. Id. Addressed to HUD’s Office of Fair Housing and Equal Opportunity (OFHEO) and agencies administering or receiving funding via HUD programs, the directive interpreted and deemed the FHA’s sex discrimination provision to “prohibit discrimination because of sexual orientation and gender identity.” Pet. App. 3a-4a. The directive directed the OFHEO to “fully enforce” the FHA as modified by the added sexual orientation and gender identity classifications. Pet. App. 4a. The OFHEO was specifically directed to “accept for filing and investigate all complaints” involving “discrimination because of sexual orientation and gender identity” (because, according to the promulgating agency, such discrimination “is real and urgently requires enforcement action.”) Id.


College of the Ozarks, not wanting to violate its sincerely held religious identity by mandating admission of biological men in their women's dorms, showers and other intimate spaces, challenged the law -- especially because it had been denied the ability to participate in the rule-making process of a law directly impacting the College.


Good governance and the Rule of Law necessarily requires a fundamentally fair, orderly, and just rule-making process.


A fair and just process requires, at a minimum, notice and the opportunity to be heard where, for example, a religious institution is regulated by the federal rule-making authority, and the religious institution has an immediate concrete interest threatened by the proposed regulation. When governing authorities provide the citizenry with notice and the opportunity to be heard, it preserves values vital to functioning democratic institutions. Indeed, deeply rooted in the legal history and traditions of this nation are the democratic values of transparency and public participation. Undergirding good governance and the Rule of Law, these important democratic principles preserve institutional legitimacy of governing authorities.


While a right to be heard is the fundamental charge of fair process, this right is of little value without notice. Which is likely why Congress, and the applicable federal regulations at the time, expressly required the federal regulating agency here to provide notice and an opportunity to respond.


When Congress enacted the Fair Housing Act (FHA) it included notice and comment requirements for “all rules” promulgated under its authority (including interpretative rules). School of the Ozarks, Inc. dba College of the Ozarks v. Joseph R. Biden et al. No. 21-2270, slip. op. (8th Cir. 2022) (Grasz, J. dissenting); 42 U.S.C. 3614a; Pet. App. 18a


Additionally, during the relevant time here, HUD’s own regulations under the APA required notice and comment for significant guidance documents. 24 C.F.R. § 11.1(b), 11.2, 11.8 (2020); Pet. App. 19a. Under this federal regulation, a guidance document included “a statement of general applicability, designed to shape or intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory … issue, or an interpretation of a statute.” Id. at § 11.2(a) (2020); Pet. App. 19a. The applicable federal regulations at the time deemed the guidance document “significant” where one could reasonably anticipate it to “[r]aise novel legal or policy issues arising out of legal mandates [or] the President’s priorities.” Id. § 11.2(d) (2020)[1] Finally, where a directive is a substantive rule (as here), the Administrative Procedure Act required notice and comment. 5 U.S.C. 553(b)-(d); See Cmty. Nutrition Inst. V. Young, 818 F.2d 943, 946 (D.C. 1987) (per curiam) (holding agency creates a substantive rule requiring notice and comment where it ties itself to a legal standard with no enforcement discretion).


As noted, the President's Executive Order deemed that FHA’s prohibition on sex discrimination included gender identity and sexual orientation. Exec. Order 13988; Pet. App. 3a. Implementing this Executive Order, HUD enacted its directive deeming the FHA’s sex discrimination provision to “prohibit discrimination because of sexual orientation and gender identity.” Pet. App. 3a-4a. HUD engaged in this lawmaking without any notice and without providing anyone with an opportunity to comment. Id.


HUD's directive directed its enforcement arm (the OFHEO) to “fully enforce” the FHA as modified by the added sexual orientation and gender identity classifications. Pet. App. 4a. The President publicly described the promulgation as a “rule change.” Proclamation No. 10,177, 86 Fed. Reg. 19,775 (Apr. 11, 2021). The OFHEO was specifically directed to “accept for filing and investigate all complaints” involving “discrimination because of sexual orientation and gender identity” (because, according to the promulgating agency, such discrimination “is real and urgently requires enforcement action.”) Id.


Whether HUD’s directive here is an interpretive rule (governed by FHA’s notice and comment requirement) or a significant guidance document (governed by the CFR’s notice and comment requirement), HUD’s deficient promulgation process lacked transparency and necessarily precluded citizen participation. Diminishing good governance under the rule of law, HUD’s denial of notice and opportunity to comment detrimentally harmed regulated entities directly impacted by the unfair and unjust process.


Like many Christian colleges and universities, the College of the Ozarks grounds its housing policy and code of conduct on sincerely held religious conscience, based in Christian doctrine. Ozarks; Pet. App. 4a-5a. To wit, the college provides housing to students, based on biological sex. These policies are grounded in Biblical precepts that God created men and women in His image, as incarnate beings of either the male or female sex. As such, these precepts provide the basis for why Petitioner and other Christian institutions hold their students to have inherent value and why they, through their housing policies, seek to protect the dignity of their students (e.g., by not empowering a biological male student to share a dorm room or other intimate spaces with a biological female student).


The underlying Biblical precepts, and college housing policies produced therefrom, are part of Ozarks very identity as a Christian college. Id. at Pet. App. 5a. The College of the Ozarks, and all Christian Universities, hold a concrete interest in preserving this religious identity. The government directive here compels College of the Ozarks to change its dorm policies and violate its sincerely held religious conscience. In doing so, it directly threatens, indeed destroys, the College’s ability to preserve its identity as a Christian college. By its very design, the right to notice and comment protects against this threatened interest of the college. The government’s depriving Ozarks of its procedural right to notice and comment, therefore, constitutes an injury in fact sufficient for standing. See, Lujan v. Defs. Of Wildlife, 504 U.S. 555, 573 n.8 (1992); U.S. Const. Art III.


Christian universities unquestionably have a concrete interest that the procedural right to notice and comment is designed to protect. Unelected government authorities at HUD changed the law and its enforcement policy here without providing any notice to threatened entities like the Petitioner falling under its regulatory authority. The government then compounded its lack of transparency by denying participation in the promulgation process to threatened parties, like Petitioner, directly impacted by the change. The failure to provide an opportunity to comment during the promulgation process deprived the Christian universities of their procedural right to notice and the right be heard. The relevant notice and comment requirements here ensure fair and just agency conduct. Depriving Ozarks of its procedural right to notice and comment, by itself, establishes a concrete injury sufficient for constitutional standing. Compare, Texas v EEOC, 933 F.3d 433 (5th Cir. 2019) (standing sufficient where party establishes it suffers a procedural injury (i.e., deprivation of right to notice and comment) threatening its concrete interests; Dismas Charities, Inc. v. U.S. Dep’t of Just., 401 F.3d 666 (6th Cir. 2005)(standing sufficient where party held procedural right of notice and comment to protect a concrete interest); East Bay Sanctuary Covenant v. Trump. 932.3d 742 (9th Cir. 2018)(standing sufficient for procedural injury due to lack of notice and comment); Sierra Club v. EPA, 699 F.3d 530 (D.C. 2012)(standing sufficient where Sierra Club members affected by the EPA regulation promulgated without required notice and comment); Salmon Spawning & Recovery Alliance v. U.S. Customs & Boarder Patrol 550 F.3d 1121 (Fed. Cir. 2008)(standing sufficient where claim sought to enforce consultation procedural right under Endangered Species Act).


Here the federal rule-making authority regulated a Christian college, and the college held an immediate concrete interest threatened by the proposed directive promulgated by the government authority. Nonetheless, the government, in defiance of the Rule of Law, deliberately deprived the college of its right to notice and the right to be heard on the promulgation of this rule. That deprivation is a constitutionally sufficient Article III injury here. Had HUD complied with the notice and comment requirements in the law, the requirement would have, as designed, protected Petitioner’s concrete interest in preserving its Christian identity. Given the direct threat to this concrete interest from the government’s change in the law, bypassing the notice and comment process certainly was an expedient way of silencing those who might present strong public policy arguments against its promulgation. Perhaps that is why the government dispensed with the fairness and transparency normally associated with properly functioning democratic institutions. In doing so, though, the government not only constitutionally injured the Christian academic institution here, it diminished good governance and the Rule of Law.

[1] Although since revoked, the relevant regulations remained “in force” during the pertinent period here. During this time, the government was required to follow and obey the relevant regulations. See, Ozark supra., citing Voyageurs region Nat’l Park Ass’n v. Lujan, 966 F.2d 424, 428 (8th Cir. 1992); Pet. App. 19a-20a

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