A Christian college in Missouri is trying to get out ahead of a Biden administration policy that would require the college to either open its residence halls, including dorm rooms and shower spaces, to members of the opposite sex or face stifling fines.
On Monday, College of the Ozarks, represented by Alliance Defending Freedom (ADF), asked the U.S. Supreme Court to review a decision by the 8th Circuit Court of Appeals that refused to block a Department of Housing and Urban Development (HUD) directive that expands the definition of “sex” in the 1968 Fair Housing Act (FHA) to include “sexual orientation” and “gender identity.”
The petition filed with the Supreme Court states, “By interpreting the FHA to address sexual orientation and gender identity, the government forces colleges to allow males to occupy female dorms—and qualify for roommate selection—when they identify as female.”
Under the FHA rubric, College of the Ozarks, a Christian institution with traditional sexual values, would be forced into one of three outcomes, all opprobrious to its faith position: It would have to either capitulate to new gender-bending government diktats that violate its Christian beliefs that one’s sex is determined at birth; abandon those beliefs; or face fines up to six figures, punitive damages, and attorneys’ fees.
The college is no stranger to controversy and has in recent years pushed back valiantly against the forces of “woke.”
This issue stems from President Joe Biden’s inauguration-day flurry of Trump policy reversals, in which he issued an executive order specifying that the FHA, among other statutes, prohibits discrimination based on gender identity of occupants of dwellings. The HUD, shortly thereafter, issued a directive mandating “full enforcement” of this new prohibition.
Because the government has not directly hassled the college for violating the order, the circuit court denied the college’s appeal because it was based on a “hypothetical,” and thus the college, it said, had not suffered “injury,” a prerequisite for legal standing to sue. The college, however, is claiming, in its petition, that because it is subject to a “new, unlawful regulation” that the government vows to enforce, it “has both standing to challenge the regulation and redress in the form of a court ruling.”
In addition, the HUD directive, according to the petition, forbids the college from communicating its housing policies — and from even saying that it prefers its own policies to the government’s new guideline: “This jeopardizes the College’s ability to function, causes emotional harm to students who rely on the College’s housing policies, and dissuades Christian students from attending the College.”
An additional charge of the college is that the HUD abandoned the legally mandated notice-and-comment procedure, which is required for changes to law and would have allowed the college to object officially to the mandate. Five other circuits have ruled that violation of a petitioner’s right to notice-and-comment was sufficient injury to grant a petitioner standing to sue the government; the 8th Circuit is the outlier.
In his dissent to the 2–1 circuit court ruling, Judge L. Steven Grasz said that when agencies fail to adhere to the proper administrative procedures, “regulated entities,” like College of the Ozarks, “are placed under a sword of Damocles but are denied access to the courts because the sword has not yet fallen.”
ADF’s senior counsel John Bursch explains what is at stake in the case:
College of the Ozarks 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 sexuality…. If the 8th Circuit decision stands, College of the Ozarks could be forced to choose between violating its religious beliefs or risking intrusive federal investigations and significant enforcement penalties. We hope the Supreme Court will take this case to halt the government’s inappropriate order targeting religious institutions and to respect the privacy, dignity, and safety of female students.
College of the Ozarks is no stranger to controversy and has in recent years pushed back valiantly against the forces of “woke.”
In 2018, its athletic teams stopped wearing Nike gear after the apparel company designated NFL quarterback Colin Kaepernick, famed for kneeling for the national anthem, as a prominent spokesman for the company’s 30th anniversary Just Do It campaign; featuring Kaepernick, school President Jerry C. Davis said, was “promoting an attitude of division and disrespect toward America.”
If Nike is ashamed of America, we are ashamed of them. We also believe that those who know what sacrifice is all about are more likely to be wearing a military uniform than an athletic uniform.
This decision came on the heels of a school policy passed about a year earlier, in fall 2017, in which the college stipulated that it would terminate play in any athletic contest if an opponent takes a knee, turns his or her back on the American flag, or sits down during the national anthem. “Our coach will simply remove our players from the court,” Davis said.
This had big-time national implications as, shortly thereafter, the National Association of Intercollegiate Athletics (NAIA), the national athletic body for small schools, decided, in direct reaction to the policy, to no longer allow College of the Ozarks to host its Division II men’s national basketball tournament.
For 18 years, College of the Ozarks had hosted this weeklong knockout tournament. Thirty-two teams, from all over the nation, had converged on Point Lookout, Missouri, near Branson, to spend a week in what is tantamount to a small-college basketball celebration — and an economic boon to Branson and environs. In 2018, the NAIA moved the tournament to Sioux Falls, South Dakota.
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