Fear That Being Known as a School That Practices Discrimination Would Harm Its Ambitious Business Plan May Be the Motivator
Earlier this month it was revealed that Pepperdine University had notified the U.S. Department of Education in January that it wanted to withdraw the request it made in 1976 to be exempt from certain provisions of Title IX of the Education Amendments of 1972, the law that bans sex discrimination at educational institutions that receive federal funds. The 1976 request was subsequently granted and Pepperdine received a license to discriminate on the basis of sex, gender identity, and sexual orientation.
In his letter to the Department of Education’s Office of Civil Rights on January 27, 2016, Pepperdine’s President Andrew K. Belton pointedly remarked that â€œThe University would appreciate OCR from removing it from any list of universities holding a Title IX exemption or, alternatively, including this withdrawal in any public disclosure of its Title IX exemption materials.â€
Some commentators have hailed Pepperdine’s request as evidence of how attitudes toward discrimination against women and LGBT students have changed even at conservative religious institutions and have applauded the university’s evolution on these issues.
But the situation may be more complex. To understand Pepperdine’s request, it must be placed in several contexts.
The university’s request is undoubtedly related to the Human Rights Campaign’s successful petition to the Department of Education to make public the names of the colleges and universities that have taken advantage of the religious exemption process. It may also be related to a lawsuit filed against it in federal court by two lesbian athletes. In addition, a proposed California law relating to colleges and universities that have received Title IX religious exemptions was also probably a factor in the decision.
Pepperdine, which has a long and fraught relationship with the LGBT community, and appeared on a Princeton Review list of most LGBT unfriendly schools,Â has probably made the decision to give up its license to discriminate less as a result of a new embrace of equal rights than out of a fear that being known as a university that practices discrimination will harm its ambitious business plan.
In December 2015, the Human Rights Campaign issued a comprehensive report called â€œHidden Discrimination: Title IX Religious Exemptions Putting LGBT Students at Risk.â€ The report, authored by Sarah Warbelow and Remmington Gregg, highlighted 56 institutions, including Pepperdine, that have utilized a little-known provision in the law that allows educational institutions controlled by a religious organization to request exemption from full compliance with the law if doing so â€œwould conflict with specific tenets of the religion.â€
The report requested that the Department of Education require schools to publish comprehensive information about the scope of exemption they have received, the characteristics or behaviors to which the exemption applies, and the ways in which Title IX still protects students; and for the Department of Education to report regularly which institutions have requested or have been granted religious exemptions covering what behaviors and characteristics.
Noting that LGBT students face alarming rates of discrimination and harassment, the HRC called for a greater level of transparency on the part of the Department of Education and on the part of institutions that discriminate.
On April 29, 2016, the Department of Education complied in part with HRC’s request by making available on its website a database of all the requests for waivers received by the Department. The database, which is searchable in various ways, including by state, regulation, date, and name of institution, makes available a treasure trove of information.
As a result of this action by the Department of Education, it is now possible to discover easily what institutions have sought a license to discriminate on the basis of several characteristics, including gender identity and sexual orientation. Previously, such information could be found only by filing a request under the Freedom of Information Act for each suspected university.
Pepperdine University was established in 1937 as a Christian liberal arts college in Los Angeles. It has since grown into a university best known for its spectacularly beautiful campus overlooking the Pacific Ocean in Malibu and as a hotbed of conservatism. In addition to its main campus in Malibu, it has other campuses in California and several study centers abroad, as well as plans to expand into Texas. It has been ranked among the least gay-friendly universities in the United States.
Pepperdine describes itself as â€œa Christian university committed to the highest standards of academic excellence and Christian values, where students are strengthened for lives of purpose, service, and leadership.â€ It is affiliated with the a capella Churches of Christ, a conglomeration of about 12,000 autonomous congregations and 1,500,000 adherents in the U.S. (and more abroad) united by a few core beliefs, which may be called loosely evangelical and fundamentalist. A majority of the university’s Board of Regents are chosen from among active members of the a capella Â Churches of Christ.
Pepperdine posts several somewhat vagueâ€”and deceptiveâ€“nondiscrimination policies on its various websites. In the faculty manual for its undergraduate school, Seaver College, for example, there is this statement, â€œPepperdine is an Equal Employment Opportunity Employer and does not unlawfully discriminate on the basis of any status or condition protected by applicable federal, state, or local law.â€
A reasonable person might read this statement as meaning that the university does not discriminate on the basis of sexual orientation or gender identity since those characteristics are protected by state law and by Title IX. However, when the statement was written the university had a license to discriminate on these grounds from the Department of Education, which in turn was honored by the state of California. Its failure to reveal its exemption in the policy itself amounts to deliberate deception.
The law school, which for several years was led by Kenneth Starr–who represented the supporters of Proposition 8 in the litigation before the California Supreme Court after Prop 8 was passed and not only argued (successfully) that Proposition 8 was constitutional but also sought (unsuccessfully) to invalidate the 18,000 same-sex marriages performed in the state before Proposition 8 was enacted–has a nondiscrimination policy that is even more disingenuous.
No doubt because the American Bar Association requires that accredited law schools not discriminate on the basis of sexual orientation, the Pepperdine Law School says it does not so discriminate. However, a statement in its nondiscrimination policy, which is both weird and condescending, practically begs students not to do anything gay:
â€œThe School of Law does not discriminate against any person on the basis of any sexual orientation that such person may have. However, sexual conduct outside of marriage is inconsistent with the schoolâ€™s religious traditions and values. Therefore, as a matter of moral and faith witness, the faculty, staff, and students of the School of Law are expected to avoid such conduct themselves and the encouraging of it in others.â€
The statement obviously was written before Proposition 8 was overturned in 2013 since it uses the formula conservative Christians often use to pretend they are not discriminating against LGBT people by saying they are opposed to all sexual conduct â€œoutside of marriage.â€ Now that same-sex couples may also marry, the real question might be whether Pepperdine expects its married gay law students and faculty to live in chastity. What the School of Law means to say is that sexual conduct outside of heterosexual marriage is inconsistent with its values.
Pepperdine’s Boone Center for the Family (named for Pat and Shirley Boone) not only does not have a nondiscrimination policy, but does not even mention same-sex marriage or LGBT families on its website, or, presumably, in its programs.
For years, Pepperdine resisted all efforts on the part of students to establish a recognized LGBT student organization. Back in 2012, when Pepperdine refused for the fourth or fifth time attempts by students to form an organization, one of them expressed anguish at the atmosphere on campus.
â€œThe effects of silence on gay students at Pepperdine are emotionally stressful and spiritually devastating,â€ the student wrote. â€œAs a gay Church of Christ junior on campus, I can personally attest that the silence harbors not only an atmosphere of ‘don’t ask, don’t tell,’ but also an atmosphere where those who hold dangerous attitudes toward homosexuality feel both comfortable and protected speaking out, through religion, against gay individuals. I’ve spoken to classes and a Bible study group at Pepperdine, and have felt the deep pain and fear expressed by gay individuals who have sought my advice afterward. Faculty is afraid of engaging the topic altogether, and when I recently asked my professor if s/he would sign the petition, s/he simply replied, ‘I’m not tenured, Dillon. I’m sorry.’â€
[In the video below from 2012, President Benton explains his decision not to recognize an LGBT student group, ReachOUT.]
However, on March 22, 2016, the administration at Pepperdine suddenly changed course and to the surprise of everyone announced that an LGBT+ club called Crossroads had received official recognition. In the wake of the approval, Pepperdine’s president said that â€œall of our students deserve our deep caring and support,â€ but stressed that Crossroads is not a political club and that its recognition was â€œnot a political statement.â€
Pepperdine’s student newspaper’sÂ report on the club’s recognition contained a telling detail. The club was supported by a petition signed by 50 full-time faculty members, and another 25 who withheld their names. The fact that 25 faculty members in support of the club were afraid to sign their names says a great deal about academic freedom at Pepperdine.
However, the larger question is whether Pepperdine’s rather abrupt but nevertheless welcome reversal of its stand regarding the official recognition of a LGBT student group is evidence of a change of heart or is it, rather, something else? Could it be an attempt to change the school’s image rather than manifest a change of heart?
Haley Videckis and Layana White
In December 2014, two basketball players at Pepperdine, Haley Videckis and Layana White, filed suit against the university and Coach Ryan Weisenberg. In the lawsuit, the women allege that they were harassed and discriminated against because of their sexual orientation.
In their original 24-page complaint filed in Los Angeles Superior Court, the women said that Weisenberg wanted them off the basketball team because he suspected they were dating and believed that that would cause the team to lose games. He allegedly told team members that â€œlesbianism was a big concern for him and for womenâ€™s basketball, . . . and would not be tolerated on the team.â€
They also allege that team staffers regularly asked them about their sexual orientation and sleeping arrangements and asked for access to their gynecology records. According to the lawsuit, the harassment was so severe as to cause White to attempt suicide.
The case was eventually refiled in federal court, where Pepperdine moved to dismiss it on the grounds (among others) that Title IX does not prohibit sexual orientation discrimination.
However, on December 15, 2015, Judge Dean D. Pregerson of the U.S. District Court for the Central District of California rejected Pepperdine’s motion to dismiss. He held that Title IX’s prohibition of â€œdiscrimination â€˜on the basis of sexâ€™ encompasses both sex–in the biological sense–as well as gender,â€ and that â€œdiscrimination based on gender stereotypes constitutes discrimination on the basis of sex.â€
With respect to the sexual orientation claim, Judge Pregerson found that â€œthe line between discrimination based on gender stereotyping and discrimination based on sexual orientation is blurry, at best. . . . [and that] claims of sexual orientation discrimination are gender stereotype or sex discrimination claims.â€
Judge Pregerson concluded that Plaintiffs had established a â€œstraightforward claim of sex discrimination under Title IX.â€ He also ruled that Plaintiffs â€œhave clearly pled a plausible claim for retaliationâ€ because they complained to coaching staff and Pepperdineâ€™s Title IX coordinator and were ultimately â€œforced off the basketball team and lost their scholarships.â€
Judge Pregerson subsequently set a trial date for March 2017. I would be surprised if Pepperdine does not settle this case before the trial begins.
Surely, it is not coincidental that soon after this major ruling from a federal judge Pepperdine took steps to improve the climate for LGBT people on its campuses and attempted to reshape its reputation as a university hostile to LGBT students.
Senate Bill 1146
But there may be another reason as well.
In 2015, at the behest of Equality California, two openly gay state Senators– Ricardo Lara of Los Angeles and Mark Leno of San Franciscoâ€”filed Senate Bill 1146, a bill that if passed would require any college or university that received a religious exemption from the U.S. Department of Education and, by extension, from California’s Equity in Higher Education Act to disclose fully and prominently that it had received such an exemption. In particular, students would have to be notified at the time of application that the college or university had a license to discriminate.
The bill would also subject religious institutions–except for those whose purpose â€œis to prepare students to become ministers of the religion or to enter upon some other vocation of the religionâ€–to California’s anti-discrimination laws if they receive assistance from the state or enroll students who receive assistance from the state.
Senate Bill 1146Â is wending its way through the legislative process, having been subject to hearings and amendments in both the Senate and the House. It is likely to be passed; and though it will probably be amended in various ways, its disclosure requirements will almost certainly survive.
A coalition of religious universities have mounted a savage attack on the bill, frequently misrepresenting it and hysterically claiming that it will end faith-based education in California. The coalition includes some of the most virulently anti-gay institutions in the state. Many of these institutions especially fear the provisions that would prohibit state funding of the institutions and their students if they discriminate.
Tellingly, Pepperdine made the decision not only not to join the coalition, but to request the revocation of its license to discriminate. It is obviously more concerned about the disclosure provisions than permission to continue its pattern of discrimination.
Most of the institutions that receive Title IX religious exemptions or that would be affected by Senate Bill 1146 are small, insular schools. Many of them are located in the South and are supported by the Southern Baptist Convention or Pentecostal denominations or small fundamentalist denominations. Â Pepperdine, however, aspires to become a much larger and more influential university than it is. It aspires to national and international recognition, especially of its Law and Business Schools.
Pepperdine’s administration has probably reached the conclusion that in order to achieve its aspirations to become a national university, it is not in its long-term interest to be associated with the smaller and narrower schools that seek licenses to discriminate.
The publicity Pepperdine has received as a result of its annual inclusion in the ranking of anti-LGBT colleges and universities has not burnished its image. Its repeated denial of recognition of LGBT student groups only increased its reputation for intolerance. The lawsuit filed by Haley Videckis and Layana White threatens to damage that reputation even more. The HRC report also highlighted its discriminatory practices. Indeed, Pepperdine has recently suffered a public relations nightmare that threatens its goal to be taken seriously as a major university.
The university’s decision to revoke its license to discriminate was probably a hard-nosed business decision rather than a genuine change of heart. Â Nevertheless, if the decision means that there will be fewer instances of harassment of LGBT students at Pepperdine, less discrimination against faculty members and other employees, and a more welcoming posture toward all, then perhaps the motivation for the turnaround can be seen as less significant than the long overdue change itself.Â
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On World AIDS Day, DOJ Says Tennessee Law Discriminates Against Those With HIV
The Department of Justice celebrated World AIDS Day by calling out a Tennessee law that discriminates against people with HIV.
The DOJ released a report Friday that the state’s aggravated prostitution law violated the Americans with Disabilities Act. A person arrested under the aggravated prostitution law is normally changed with a misdemeanor, and faces up to six months in prison and a $500 fine. However, if the person arrested has HIV, the crime becomes a felony, and if they’re convicted, they would face between three and 15 years in prison and a $10,000 fine.
“Tennessee’s aggravated prostitution law is outdated, has no basis in science, discourages testing and further marginalizes people living with HIV,” Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division said in a statement. “People living with HIV should not be treated as violent sex offenders for the rest of their lives solely because of their HIV status. The Justice Department is committed to ensuring that people with disabilities are protected from discrimination.”
The law was originally passed in 1991. It classifies HIV-positive sex workers as violent sex offenders, according to WKRN-TV. This means that in addition to the sentence, those convicted are put on the Tennessee Sex Offender Registry, usually for the rest of their lives.
The DOJ advised the state—and particularly, the Shelby County District Attorney’s Office, which enforces the statute most frequently, the department says—to stop enforcing the law. It also calls on the state to repeal the law and remove anyone from the registry when aggravated prostitution is the only offense. If this doesn’t happen, Tennessee could face a lawsuit.
Tennessee isn’t the only state to have laws applying to only those living with HIV. In 1988, Michigan passed a law requiring those with HIV to disclose their status before sex, according to WLNS-TV. The law is still on the books, but was updated in 2019 to lift the requirement if the HIV-positive person has an undetectable viral load. The law now also requires proof that the person set out to transmit HIV.
Laws like these can work against public health efforts, according to the National Institutes of Health. The NIH says these types of laws can make people less likely to be tested for HIV, as people cannot be punished if they didn’t know their status. In addition, critics say, the laws can be used to further discriminate. A Canadian study found a disproportionate number of Black men had been charged under HIV exposure laws.
World AIDS Day was first launched in 1988 by the World Health Organization and the United Nations to highlight awareness of the then-relatively new disease. The theme of the 2023 World AIDS Day is “Let Communities Lead,” calling on community leaders to end the AIDS epidemic.
Featured image by UNIS Vienna/Flickr via Creative Commons License.
John Fetterman Says Bob Menendez ‘Senator for Egypt,’ Should Be Expelled Next
Senator John Fetterman (D-PA) called Senator Bob Menendez (D-NJ) a “senator for Egypt,” and said he needed to be expelled from Congress, much like the now-former Representative George Santos.
Fetterman appeared on The View on Friday. The live broadcast aired as Santos had been kicked out of the House. When host Joy Behar asked what he thought of the vote, Fetterman immediately replied, “I’m not surprised.”
“If you are going to expel Santos, how can you allow somebody like Menendez to remain in the Senate? And, you know, Santos’ kind of lies were almost, you know, funny,” Fetterman said. “Menendez, I think is really a senator for Egypt, you know, not New Jersey. So I really think he needs to go.”
Host Sunny Hostin then asked if Fetterman was uncomfortable with expelling Menendez, as, like with Santos, he had only been indicted, not convicted.
“He has the right for his day in court and all of it, but he doesn’t have the right to to have those kinds of votes and things. That’s not a right,” he said. “I think we need to make that kind of decision to send him out.”
This September, Menendez was indicted on corruption charges. He is accused of accepting bribes of cash, gold and a car, as well as giving “highly sensitive” information about U.S. Embassy staffers in Cairo to the Egyptian government, according to USA Today. Menendez was forced to step down as chair of the Senate Foreign Relations Committee. He was replaced by Ben Cardin, Maryland’s Democratic senator.
Menendez denied wrongdoing, and has refused to resign, despite many calls to do so from both Democrats and Republicans.
“For years, forces behind the scenes have repeatedly attempted to silence my voice and dig my political grave,” Menendez said in a statement following his indictment. “Since this investigation was leaked nearly a year ago, there has been an active smear campaign of anonymous sources and innuendos to create an air of impropriety where none exists.”
This is not Menendez’s first brush with the law. Menendez was indicted in 2015 on federal corruption charges. He was accused of helping Salomon Melgen, one of Menendez’s campaign contributors, by intervening in a dispute with federal regulators and helping Melgen get a port security contract in the Dominican Republic.
In 2017, Menendez’s trial ended with a hung jury, and the Department of Justice declined to retry the case, according to the Philadelphia Inquirer. Menendez denied all wrongdoing.
House Votes to Boot George Santos 311-114
Representative George Santos (R-NY) has been expelled from Congress following a 311-114 vote; two House members voted “present.”
The expulsion of Santos follows a debate on his fate on Thursday. The vote required a two-thirds majority, or 290 of the 435-seat chamber. This is Santos’ third vote of expulsion; last month, a vote failed with 31 Democrats voting against, according to The Hill.
While the vote was decisive, some notable Republicans voted to save Santos, including House Speaker Mike Johnson (R-LA) and House Majority Whip Tom Emmer (R-MN).
“We’ve not whipped the vote and we wouldn’t,” Johnson told CNN Wednesday. “I trust that people will make that decision thoughtfully and in good faith. I personally have real reservations about doing this, I’m concerned about a precedent that may be set for that.”
Santos himself had harsh words for the House following the vote. Leaving the capitol building, he briefly spoke with reporters.
“The House spoke that’s their vote. They just set new dangerous precedent for themselves,” he told CNN. “Why would I want to stay here? To hell with this place.”
He then cut his time short, telling reporters, “You know what? As unofficially no longer a member of Congress, I no longer have to answer your questions.”
Santos also faces 23 federal charges, which include fraud, money laundering and misuse of campaign funds, according to CNN. He has pleaded not guilty. An Ethics Committee report found evidence that Santos used campaign funds for Botox and even an OnlyFans account.
On Thursday, Santos said he refused to resign because otherwise, “they win.”
“If I leave the bullies take place. This is bullying,” Santos said. “The reality of it is it’s all theater, theater for the cameras and theater for the microphones. Theater for the American people at the expense of the American people because no real work’s getting done.”
Santos also threatened to file a resolution to expel Representative Jamaal Bowman (D-NY). Bowman pulled a fire alarm in September. Bowman pleaded guilty to the misdemeanor charge, and said it was an accident. He said he thought the fire alarm would open a locked door as he rushed to a vote. Bowman paid a $1,000 fine.
There have only been six total expulsions from the House, including Santos. Santos is the only Republican to ever be expelled from the House.
The previous expulsion was in 2002, when Representative James Traficant (D-OH) was expelled after a 420-1 vote. Traficant had been convicted on 10 counts of corruption-related crimes.
Before Traficant, Representative Michael “Ozzie” Myers (D-PA) was the first representative of the modern era to be expelled. Myers got the boot following his conviction for accepting bribes. Myers couldn’t keep out of trouble; in 2022, he was convicted and sentenced to 30 months in prison on charges of election fraud.
Prior to Myers, the only expulsions from the House were in 1861, at the start of the Civil War. Henry Cornelius Burnett (D-KY), John William Reid (D-MO) and John Bullock Clark (Whig-MO) were all expelled for joining the Confederacy.
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