Case Summary
From kindergarten onward, we’re taught not to bully others into submission. Instead, we’re taught to respect each other’s differences. Our differences, whether racial, ethnic, attitudinal, or religious, is what makes American society so unique.
But tolerance is being undermined from above. President Biden and his administrative state are forcefully imposing their radical new definition of “sex discrimination” on unwilling housing providers, including religious colleges. The School of the Ozarks, a private Christian college in Missouri, attempted to fight back by filing a lawsuit correctly alleging that the Biden Administration is infringing upon its natural rights to free speech and religious liberty. Unfortunately, the school’s Petition for a Writ of Certiorari to the Supreme Court was denied on June 20, 2023.
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Case History
On January 20, 2021, President Biden signed Executive Order 13988, benignly titled “Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.” The order explicitly adopts a new definition of “sex discrimination” to include “discrimination on the basis of gender identity or sexual orientation” and directs federal agencies to alter their activities in order to more fully “implement statutes that prohibit sex discrimination.”
Subsequently, in the following February, the Department of Housing and Urban Development (HUD), issued a directive requiring the Fair Housing Act to be enforced in a way that prohibits discrimination in housing based on sexual orientation and gender identity.
Interestingly, the Fair Housing Act was enacted in 1968 to combat racial discrimination in housing, and the word “sex” was not added until 1974. In 1974, the term “sex” meant biological sex, not a subjective notion of gender.
But here’s the problem: the directive directly conflicts with the deeply held beliefs of religious, particularly Christian, housing providers. College of the Ozarks is one such housing provider, offering its students residences that are separated by sex for religious purposes.
The directive forces the College to allow biological males, based on their gender identity, to sleep, shower, and work in residence halls reserved for biological females. That’s right: the federal government is compelling the College to allow men to occupy the same dorm rooms, the same showers, the same bathrooms as women.
Making matters worse, due to Fair Housing Act regulations, the College is censored from even telling students and prospective students that its dorms are or should be separated by sex. Rather, HUD is forcing the College to make affirmative statements that the residence halls aren’t separated by biological sex, sexual orientation, or gender identity.
The Biden Administration is coercing the College into violating the very religious beliefs upon which it was founded, ordering it to ignore and actively denounce its belief in sex as an immutable, God-given characteristic. This should be a clear violation of the First Amendment, restricting both the school’s right to freely advocate for sex-separated dorms and its right to freely express its religiously-based conception of the human person.
And justice, as needed as ever, has been denied. After the School of the Ozarks filed its suit against the Biden Administration in the District Court for the Western District of Missouri, the court dismissed the case, claiming that the school isn’t in danger of “sustaining… a concrete and particularized harm that is actual or imminent…” The case was thrown out on an issue of standing.
Still, the School of the Ozarks appealed the decision to the Court of Appeals for the Eighth Circuit. Yet the Eighth Circuit affirmed the judgment of the district court. The court reasoned that schools with religious exemptions have never been targeted under the Fair Housing Act, and brushed the college’s First Amendment claims aside. The college was undeterred. In 2023, the School of the Ozarks petitioned the Supreme Court to hear its case. MSLF was proud to support the petition with an amicus brief, filed on March 28, 2023. Sadly, the Supreme Court denied certiorari on June 20, 2023.
The school’s president, Jerry C. Davis, showed grit and determination throughout the life of the case. He stated: “We will not let a radical executive order or agency directive strip us of our core religious values and force us to allow members of the opposite sex to infiltrate our women’s dorms and showers.”
All that the School of the Ozarks wanted was its day in court. It wanted to be able to fight for the precepts that have guided its growth for over a century, the very precepts that are defended explicitly in the First Amendment’s protections of free exercise and free speech. Our justice system was designed for this, designed for occasions when the federal government attempts to bully its constituents into submission. Yet sadly, justice did not prevail in this case.