9th Circuit upholds federal financial aid for students at religious universities
9th Circuit upholds federal financial aid for students at religious universities
Opposite ruling could have upended school plans for millions of students
A federal law that allows students at religious-based colleges and universities to receive federal tuition aid even though the schools discriminate on the basis of sex was unanimously upheld today by a three-member panel of the 9th Circuit U.S. Court of Appeals.
The decision stems from a lawsuit, Hunter v. U.S. Department of Education, filed by a group of LGTBQ activists in 2021. The group sought to prevent students at three schools — Phoenix Seminary in Scottsdale, Ariz.; Corban University in Salem, Ore.; and William Jessup University in Rocklin, Calif. — from receiving federal financial aid.
A win by the plaintiffs would have represented a major change in the allocation of federal financial aid, as millions of students attending religiously-based schools have depended on the aid, usually made up of loans that must be repaid.
The panel deciding the case was made up of Milan D. Smith Jr., a George Bush appointee; Mark J. Bennett, a Donald Trump appointee; and Anthony D. Johnstone, a Joe Biden appointee.
Although a large part of the ruling discussed procedural grounds involving the nature of the appeal from a trial court ruling, a key part of the ruling found that Congress acted within its authority to make an exception for religious-based institutions that engage in sexual discrimination. Most notably, it made its ruling based on recent U.S. Supreme Court trends that look to historical practices rather than the once-dominant Lemon test that takes into account matters such as government entanglement in religion.1
In looking to history, the panel accepted the argument of the U.S. Department of Education that exemption of religious schools from the law are analogous to religious tax exemptions that have long been accepted:
Absent additional historical evidence — and Plaintiffs point us to none here — the history of tax exemptions near the time of the Founding suggests that the statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning.
The panel also noted that there has been an “uninterrupted practice” of exemptions for religious institutions:
The examples provided by the Department [of Education] demonstrate that religious exemptions have “withstood the critical scrutiny of time and political change.” ... And given that this exact law did not exist at the Founding, that more recent (albeit, still lengthy) tradition is of greater salience.
The panel’s ruling is subject to appeal to either a full panel of the Appeals Court or to the U.S. Supreme Court.
For a discussion of the Lemon test see this article involving the Oklahoma policy on teaching the Bible in schools.